DIERDORF v. ADVANCED MOTION THERAPEUTIC MASSAGE, INC. et al
Filing
98
ORDER denying 65 Motion for Summary Judgment. Signed by Judge Rodolfo A. Ruiz, II on 1/6/2021. See attached document for full details. (kbm)
Case 0:19-cv-62609-RAR Document 98 Entered on FLSD Docket 01/06/2021 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-CIV-62609-RAR
WILLIAM DIERDORF,
Plaintiff,
v.
ADVANCED MOTION THERAPEUTIC
MASSAGE, INC., et al.,
Defendants.
_______________________________/
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment
[ECF No. 65] (“Motion”), filed on May 21, 2020. Defendants assert they are entitled to summary
judgment on Plaintiff William Dierdorf’s claims under the Fair Labor Standards Act (“FLSA”) for
allegedly earned and unpaid overtime compensation. Having considered the parties’ written
submissions, the record, and applicable case law, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment [ECF
No. 65] is DENIED as set forth herein.
BACKGROUND
Plaintiff was employed as a Physical Therapist Assistant (“PTA”) by Defendant Advanced
Motion Therapeutic Massage, Inc. (“AMT”) from approximately September 1, 2016 through
August 2, 2019. See Compl. [ECF No. 1] ¶ 10. Plaintiff worked between 50 and 60 hours per
week earning roughly $25 per hour but claims that he was not paid for all hours worked in excess
of 40 per week. Specifically, Plaintiff argues that he was not compensated for the hours during
which he completed patient charts and daily progress notes.
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AMT’s business facility was open Monday through Friday, from 8:00 AM to 7:00 PM.
Pl. Resp. in Opp. to Defs. Statement of Material Facts in Supp. of Mot. for Summary Judgment
[ECF No. 75] (“Pl. SOMF”) ¶ 15. Plaintiff would treat at least one, and sometimes up to three,
patients during every hour he was scheduled to work. Id. ¶¶ 17-18. This required meeting with
patients and providing one-on-one care. Id. ¶ 20. However, charting patient records and inputting
patient notes was also included as part of Plaintiff’s job duties. And because Plaintiff’s treatment
of patients monopolized his time while physically present at the facility, he was forced to complete
his patient documentation duties after all of his scheduled appointments were done. Id. ¶¶ 19, 2324. This usually meant that Plaintiff would complete these duties at home, as Plaintiff insists he
was instructed to do by his superiors. Id. ¶¶ 25-27.
It is these hours that Plaintiff allegedly worked inputting patient records that form the heart
of this dispute. Plaintiff submitted his own timesheets—detailing hours worked per pay period—
to Defendants for payment on a bi-weekly basis, and these timesheets did not include the hours he
seeks payment for in this suit. See Defs. Statement of Material Facts [ECF No. 66] (“Defs.
SOMF”) ¶¶ 1, 4. Instead, Plaintiff’s timesheets only included hours worked attending to scheduled
patients because, according to Plaintiff, he was told that he was “only paid for the time that he was
at the facility treating patients.” Pl. SOMF ¶¶ 1-2, 4.
To demonstrate the number of hours allegedly worked beyond those indicated on the
timesheets, Plaintiff offers records from WebPT, the third-party software system Plaintiff was
instructed by Defendants to use to chart patient files. Id. ¶ 36; see also generally Ex. B, Pl. SOMF.
The software is programmed to log a user out for inactivity, upon which all of the information
entered into patients’ notes is deleted. Pl. SOMF ¶¶ 36-38. Thus, Plaintiff avers that he “is entitled
to compensation for all hours identified in the WebPT activity log between 7:00 p.m. and 8:00
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a.m. because those were the times that Plaintiff was not treating patients, and was instead drafting
progress and daily notes.” Id. ¶ 39.
Plaintiff filed his Complaint on October 21, 2019, alleging two claims for unpaid overtime
wages under the Fair Labor Standards Act—one against Defendants AMT Massage, Inc. and AMT
of Vero Beach, LLC (collectively, the “Corporate Defendants”) and another against Defendants
Maria and Omiros Zambigadis (collectively, the “Individual Defendants”). Compl. [ECF No. 1].
In their Motion, Defendants maintain that: 1) Plaintiff cannot demonstrate that he worked overtime
without compensation because his own self-prepared timesheets do not include such overtime
work; 2) even if he could demonstrate that he worked overtime without compensation, Defendants
did not have knowledge of such work; and 3) Defendant AMT of Vero Beach is an improper
defendant because no enterprise coverage exists under the FLSA. In his Response [ECF No. 75]
(“Resp.”), Plaintiff counters that: 1) the audit logs from WebPT create an issue of fact as to whether
Plaintiff worked overtime without compensation; 2) an issue of fact exists as to whether
Defendants had actual or constructive knowledge of said work; 3) and Defendant AMT of Vero
Beach is a proper defendant under the FLSA.
LEGAL STANDARD
Summary judgment is rendered if the pleadings, the discovery and disclosure materials on
file, and any affidavits show there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). An issue of fact is “material”
if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find
for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). At summary judgment, the moving party has the burden of proving the
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absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the
non-moving party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). The nonmoving party’s presentation of a “mere existence of a scintilla of evidence” in support of its
position is insufficient to overcome summary judgment. Anderson, 477 U.S. at 252.
If there are any factual issues, summary judgment must be denied, and the case proceeds
to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013 WL 5583970, at
*2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981)).
Further, when the parties “agree on the basic facts, but disagree about the inferences that should
be drawn from these facts[,]” summary judgment “may be inappropriate.” Id. (alteration added
and citation omitted).
ANALYSIS
“Under the FLSA, an employer may not employ his employee for a workweek longer than
forty hours unless his employee receives overtime compensation at a rate not less than one and a
half times his regular rate.” Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th
Cir. 2007) (citing 15 U.S.C. § 207(a)(1)). “[I]f the employer knows or has reason to believe that
the employee continues to work, the additional hours must be counted.” Id. (internal quotations
omitted). It therefore follows that in order to recover, “a FLSA plaintiff must demonstrate that (1)
he or she worked overtime without compensation and (2) the [employer] knew or should have
known of the overtime work.” Id. at 1314–15.
Because Plaintiff must establish both elements in order to eventually recover, he must show
that a genuine dispute of material fact exists as to both in order to defeat summary judgment. The
Court therefore reviews the two elements in turn followed by Defendants’ assertion that AMT of
Vero Beach, LLC is an improper defendant.
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A. Uncompensated overtime hours
Defendants argue that no reasonable jury could find that Plaintiff worked overtime without
compensation because his own self-prepared timesheets do not include such overtime work and he
fails to produce evidence to rebut these records. See Mot. at 4-6.
“Where the employer has records of time, the employee must come forward with sufficient
evidence to call such records into question.” Allen, 495 F.3d at 1315. Where the accuracy or
adequacy of an employer’s records is called into question, the Court applies a “relaxed burdenshifting scheme.” Id. In such a situation, an employee has “carried out his burden if he proves
that he has in fact performed work for which he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” Id. at 1316. The burden then shifts to the employer, who must submit evidence of
either the precise amount of work the employee performed or “evidence to negate the
reasonableness of the inference to be drawn from the employee’s evidence.” Id.
In his deposition testimony, Plaintiff detailed how he was required to chart patient records
from home and was not paid for this time. Pl. Depo. Tr. [ECF No. 66-1] at 32:2-3; 60:1-3; 76:217. This alone weighs heavily towards calling the accuracy of the timesheets into question. See,
e.g., Gohn v. EB, LLC, No. 2:18-cv-866, 2020 WL 5984013, at *5 (N.D. Ala. Oct. 8, 2020)
(“[Plaintiff]’s testimony calls into question [defendant]’s records in as much as she unambiguously
testified that she worked after she clocked out. If [plaintiff]’s testimony is to be believed, as it
must be at summary judgment, [defendant] did not accurately pay her for the amount of time she
worked.”). Plaintiff also testified that he was told by Defendants’ Office Manager that he would
not be paid for this time, which is why he did not include it on his timesheets. Pl. Depo. Tr. at 78:
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11-14; 135:22-136:4. 1 Drawing all reasonable inferences in favor of Plaintiff as the non-movant,
this further explains why Plaintiff would not have listed these hours on his timesheets, and once
again calls their veracity into question. See Clark v. Northview Health Servs., LLC, No. 11–0664–
WS–N, 2013 WL 790850, at *3 (S.D. Ala. Mar. 4, 2013) (“Since there is evidence that [the
defendant’s owner] told the plaintiff her off-duty work would be considered unauthorized
overtime, prompting her not to record those hours, the defendants cannot hide behind their records
and thereby avoid liability.”). “A contrary conclusion would undermine the remedial goals of the
FLSA, as it would permit an employer to obligate its employees to record their own time, have its
managers unofficially pressure them not to record overtime, and then, when an employee sues for
unpaid overtime, assert that his claim fails because his timesheets do not show any overtime.”
Kuebel v. Black & Decker Inc., 643 F.3d 352, 363-64 (2d Cir. 2011).
Once a plaintiff has demonstrated an issue of fact as to the accuracy of an employer's time
records, he must then show the amount of unpaid work “as a matter of just and reasonable
inference.” Allen, 495 F.3d at 1316 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946)). Here, Plaintiff primarily relies on a third party’s login and logout report to support
his allegation that he worked overtime hours for which he was not paid. Pl. SOMF. ¶¶ 36-38.
1
Defendants point out that the Office Manager, Linda Chauvin, passed away before the filing of this action,
and therefore any testimony regarding alleged statements by Ms. Chauvin constitutes inadmissible hearsay.
Reply to Pl. Am. Resp. in Opp. to Def. Mot. for Summary Judgment [ECF No. 77] (“Reply”) at 8 n.4. This
testimony is the subject of Defendants’ pending Amended Motion in Limine [ECF No. 79]. Generally,
inadmissible hearsay cannot be considered on a motion for summary judgment. Macuba v. Deboer, 193
F.3d 1316, 1322 (11th Cir. 1999). However, as it pertains to the disputed accuracy of the timesheets,
Plaintiff’s testimony that Ms. Chauvin told him that he would only be paid for time treating patients is not
being offered for the truth of the matter asserted, but rather for the effect it had on Plaintiff as the listener.
See United States v. Trujillo, 561 F. App’x 840, 842 (11th Cir. 2014) (“Generally, an out-of-court statement
admitted to show its effect on the listener is not hearsay.”) (citation omitted); see also FED. R. EVID.
801(c)(2) (“‘Hearsay’ means a statement that . . . a party offers in evidence to prove the truth of the matter
asserted in the statement.”). This statement by Ms. Chauvin is not being offered to prove that Plaintiff was
not paid for time spent not treating patients, but rather to show the statement prevented Plaintiff from
entering such time on the timesheets in question. At this stage in the proceedings, the Court will consider
such testimony solely for this limited purpose.
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Specifically, Plaintiff argues that he “is entitled to compensation for all hours identified in the
WebPT Activity Log between 7:00 p.m. and 8:00 a.m. because those were the times that Plaintiff
was not treating patients and was instead drafting progress and daily notes.” Resp. at 7.
This precise type of evidence was deemed sufficient in Schainberg v. Urological
Consultants of S. Fla., P.A., No. 12-21721-CIV, 2013 WL 12086461, at *7 (S.D. Fla. Mar. 18,
2013). There, the “[p]laintiff [] submitted an array of evidence regarding the log in/log out
information from the computer software, which she claim[ed] substantiate[d] her testimony
regarding her overtime work. Plaintiff further maintain[ed] [d]efendants' time records [were]
incorrect, as [d]efendants would not permit [p]laintiff to submit the overtime she worked.” Id.
This Court agrees that “[t]his is ‘sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.’” Id. (quoting Anderson, 328 U.S. at 687).
While Defendants take issue with Plaintiff’s estimation of his hours using the WebPt audit
logs, see Mot. at 5, the Eleventh Circuit has made clear that “[a]lthough a FLSA plaintiff bears the
burden of proving that he or she worked overtime without compensation, the remedial nature of
this statute and the great public policy which it embodies . . . militate against making that burden
an impossible hurdle for the employee.” Allen, 495 F.3d at 1315 (internal citation and quotation
omitted). Thus, contrary to Defendants’ assertions, Plaintiff is not required at this stage to prove
the exact amount of time he spent performing overtime work. The evidence from the WebPT audit
logs is sufficient to delineate the amount of Plaintiff’s unpaid overtime by “just and reasonable
inference.” Id. at 1316; cf. Straley v. Ferrellgas, Inc., No. 8:08-cv-2460-T-26MAP, 2009 WL
10670500, at *2 (M.D. Fla. Sept. 16, 2009) (finding plaintiff’s evidence insufficient where plaintiff
testified that she “could not begin to estimate the amount of time” that she worked off the clock
and “could not identify anything that would help her make such an estimate, other than her
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personal speculation that computer records might reflect her log in and log out times.”) (emphases
added). Accordingly, for the foregoing reasons, the Court finds that a genuine issue of material
fact exists as to whether Plaintiff worked overtime without compensation.
B. Defendants’ knowledge of unpaid overtime
Upon demonstrating that a genuine issue of fact exists as to whether he worked unpaid
overtime, Plaintiff must also establish that an issue of fact exists as to Defendants’ knowledge of
such unpaid overtime to survive summary judgment. The Court must be satisfied that a reasonable
jury could conclude from the evidence that Defendants knew or should have known that Plaintiff
was working overtime for which he was not compensated. See Allen, 495 F.3d at 1314–20
(discussing proof by either actual or constructive knowledge). Here, a genuine issue of fact exists
as to Defendants’ both actual and constructive knowledge of Plaintiff’s overtime work.
Plaintiff testified that he spoke to his supervisor, Doyle Sewell, about not being paid for
time spent charting patient records outside of Defendants’ facility. Pl. Depo. Tr. at 77:7-78:3.
This actual knowledge of Plaintiff’s unpaid overtime is attributable to Defendants because
“[k]nowledge by supervisors . . . is typically imputed to the employer.” Sidell v. MedMark Servs.
Inc., No. 2:16-cv-176-RWS, 2017 WL 6994574, at *5 (N.D. Ga. Aug. 3, 2017) (citing Brennan v.
Gen. Motors Acceptance Corp., 482 F.2d 825, 827–28 (5th Cir. 1973)). 2
The record also raises an issue of fact as to whether Defendants had constructive
knowledge of Plaintiff’s unpaid overtime, which, unlike actual knowledge, “is measured in
accordance with [an employer’s] duty to inquire into the conditions prevailing in his business.”
2
Defendants insist that imputing Sewell’s knowledge to them is inappropriate because “Sewell maintained
the same position as Plaintiff.” Reply at 9. However, Plaintiff testified that Sewell was promoted above
him and was his supervisor at the time he spoke with him about not being paid for the time spent charting
records outside the facility, Pl. Depo. Tr. at 117:13-23, and Defendants point to no evidence in the record
to suggest this is untrue.
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Reich v. Dept’ of Conservation & Nat. Res., 28 F.3d 1076, 1082 (11th Cir. 1994) (citation omitted).
“In reviewing the extent of an employer’s awareness, a court need only inquire whether the
circumstances were such that the employer either had knowledge of overtime hours worked or else
had the opportunity through reasonable diligence to acquire knowledge.” Id. (emphasis in original)
(internal citations and quotations omitted). Notably, “when an employer turns a blind eye to
overtime needed to accomplish all job tasks, knowledge can be inferred.” Sidell, 2017 WL
6994574, at *6.
The evidence here indicates that Defendant Homer Zambigadis, an owner of the Corporate
Defendants, knew that Plaintiff spent time charting patient records outside the facility and at times
even instructed him to do so. Pl. Depo. Tr. at 76:13-24; 112:15-113:8. A jury could reasonably
conclude that Plaintiff did so, and Zambigadis knew as much, because it was impossible for
Plaintiff to complete the charting of patient records—an essential responsibility of his position—
within the time frame that he was at Defendants’ facility, which was the only time for which he
was compensated. During every hour Plaintiff was scheduled to work, he was scheduled to treat
at least one patient without breaks, and there was a “common practice” of him treating two, and
sometimes even three, patients simultaneously during the same hour. Id. at 105: 11-24; 125: 5-22;
126: 7-15. Because patients required “hands on” treatment from Plaintiff, it was not possible for
Plaintiff to complete all necessary charting for each patient while at the facility, id. at 126:24127:20, especially considering that Plaintiff was allegedly “discouraged” from charting records
while treating patients and was “reprimanded [] on several occasions” for doing so, id. at 78:2023.
Indeed, Plaintiff testified that if he was seen charting records at the facility instead of being
with a patient one-on-one, he would get “chew[ed] out” with “foul language” by his supervisors,
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including the Individual Defendants. Id. at 79:11-18; 141:6-9. Thus, Plaintiff completed these
recordkeeping tasks away from the facility after regular working hours, and the audit logs show
that Plaintiff’s own supervisor apparently did the same. See Ex. B, Resp. [ECF No. 76-2] at 26;
137-38; 169-70; 176-77; 258-59.
Based upon this evidence, a reasonable jury could conclude that with a minimal degree of
diligence, Defendants could have reviewed Plaintiff’s timesheets—which showed only the time
spent treating patients—and realized they did not encompass the time Plaintiff was required to
spend charting patient records away from the facility. See Sidell, 2017 WL 6994574, at *6; see
also Quintero v. Lopez, No. 15-21162-CIV, 2016 WL 7508264, at *5 (S.D. Fla. June 6, 2016)
(“Plaintiff told Defendants that she did not have enough time in her workday to complete all of her
duties, but Defendants do not allege that Plaintiff ever failed to complete her duties. A reasonable
inference is that Plaintiff was required to work [overtime] to complete her duties.”); Fletcher v.
Universal Tech. Inst., Inc., No. 6:05CV585ORL31DAB, 2006 WL 2297041, at *6 (M.D. Fla. June
15, 2006) (finding that with a reasonable degree of diligence, the defendants could have discovered
that their employees needed to work overtime “in order to accomplish all of the tasks associated
with their jobs.”). This is especially so in light of the duty of employers and management to
exercise control of the workplace and prevent undesired work from being performed. 29 C.F.R. §
783.13 (“[I]t is the duty of the management to exercise its control and see that the work is not
performed if it does not want it to be performed. It cannot sit back and accept the benefits without
compensating for them.”); see also Reich, 28 F.3d at 1082 (discussing employer duty to inquire
into conditions of work).
Defendants again point to the timesheets submitted by Plaintiff, arguing that because he
did not include the alleged overtime work on the timesheets he prepared, they cannot be charged
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with knowledge of such work. Mot. at 7-8. Defendants rely on commonly-cited authority holding
that an employer does not have knowledge of uncompensated overtime when an employee submits
timesheets showing the claimed overtime did not occur. See, e.g., Gilbert v. City of Miami
Gardens, 625 F. App’x 370, 373 (11th Cir. 2015) (quoting Gaylord v. Miami–Dade Cty., 78 F.
Supp. 2d 1320, 1325 (S.D. Fla. 1999)). “In each of these cases, however, the plaintiffs were
responsible for reporting their work hours and the employers had no knowledge of the plaintiffs’
off-the-clock hours and no reason to know that the information reported by the employee was
inaccurate.” Dudley v. All Seasons Landscaping, Inc., No. 8:10–cv–1660–T–33AEP, 2011 WL
5358699, at *2 (M.D. Fla. Nov. 2, 2011). For the reasons explained above, that is not the case
here. See Clark, 2013 WL 790850, at *4 (“The defendants insist that an employer does not have
knowledge of uncompensated overtime when an employee submits time sheets showing such
overtime did not occur, but this is not an exceptionless rule, and it cannot be applied when, as here,
the employer had actual knowledge of the overtime hours from its own involvement in their
incurrence. Gaylord has been repeatedly distinguished on this basis.”) (internal quotation omitted)
(collecting cases); Reyna v. Conagra Foods, Inc., No. 3:04–cv–39, 2006 WL 3667231, at *5 (M.D.
Ga. Dec. 11, 2006) (rejecting defendants’ argument that defendants cannot be charged with
knowledge of plaintiffs’ uncompensated overtime because plaintiffs signed and approved their
time card summaries reflecting fewer hours than those actually worked when defendants had actual
knowledge that plaintiffs were working overtime).
Because Plaintiff has submitted evidence that Defendants had knowledge of hours worked
in excess of those reported on his timesheets, the Court finds that there is a genuine issue of
material fact as to whether the amount Plaintiff received in compensation from Defendants is the
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totality of the amount to which Plaintiff is entitled. Accordingly, the Court is precluded from
granting summary judgment on this issue in favor of Defendants.
C. Whether Defendant AMT of Vero Beach is a proper defendant
Defendants fail to cite any evidence supporting their allegation that Defendant AMT of
Vero Beach, LLC is an improper defendant. In support of their argument that no enterprise
coverage exists under the FLSA, Defendants offer only the unsupported allegation that “AMT
Vero Beach does not employ anyone or conduct any business.” Mot. at 10-11.
There is no burden on the Court to identify unreferenced evidence supporting a party’s
position. FED. R. CIV. P. 56(c)(3) (“The court need consider only the cited materials . . .”); see
also Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (explaining that
judges “are not like pigs, hunting for truffles buried in briefs . . . ”) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d
1201, 1208 n.11 (11th Cir. 2006) (explaining that courts do not have “an obligation to parse a
summary judgment record to search out facts or evidence not brought to the court’s attention.”).
Thus, the Court concludes that Defendants have not met their burden of demonstrating that there
is no genuine issue of material fact as to whether Defendant AMT of Vero Beach, LLC is an
improper defendant.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion
for Summary Judgment [ECF No. 65] is DENIED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 6th day of January, 2021.
_________________________________
RODOLFO A. RUIZ II
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UNITED STATES DISTRICT JUDGE
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