Neville v. McCaghren
Filing
78
ORDER denying Plaintiff's 47 - 51 , 53 - 54 , 60 , 64 - 65 , 70 and 73 Motions; terminating 42 Motion to Vacate; granting in part and denying in part Defendant's 63 Motion for Sanctions and sanctions are hereby imposed and enumerated in this Order. This case shall remain closed. Signed by Chief Judge J. Randal Hall on 01/03/2019. (jlh)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
ROBERT NEVILLE,
*
•A-
Plaintiff,
*
5
V.
*
CV 617-075
5
ELIZABETH C. MCCAGHREN,
*
*
Defendant.
*
*
ORDER
Pending before the Court are twelve post judgment motions
from Plaintiff and
Defendant's motion for sanctions.
The
Court
will address each motion in this Order.
I.
BACKGROUND
Plaintiff and Defendant are half-siblings and the children of
Jessica Neville, who died in a house fire in 2008.
1, at 2.)
(Compl., Doc.
Plaintiff alleged that his sister engaged in fraud in
administering their mother's estate, both before and after her
death.
(Id.
at
3.)
He
specifically
alleged
that
Defendant
effected a ''straw sale" of the estate's interest in real property
located in Bulloch County, Georgia (the "Bulloch Property").
(Id.)
This is the third time Plaintiff filed a complaint in this
Court making the same allegations.
(See Neville v. McCaghren,
Case No. 6:13-CV-050 (S.D. Ga. dismissed Nov. 20, 2013) ("2013
Action")f Doc. 1; Neville v. McCaghren, Case No. 6:15-CV-028 (S.D.
Ga. dismissed May 20, 2016) ("2015 Action"), Doc. 1.)
Each action
was dismissed for Plaintiff's failure to comply with procedural or
jurisdictional requirements.
In the 2015 Action, the Court sua
sponte imposed
Plaintiff for
sanctions
on
continuing to
file
frivolous motions after judgement, thereby restricting his ability
to file cases in this District.
(2015 Action, Doc. 52, at 8-10.)
Accordingly, when Plaintiff filed the instant Complaint and motion
to proceed
forma pauperis ("IFP"), it was preliminarily screened
for arguable merit before a new case file was opened.
(See Neville
V. McCaghren, Case No. 6:17-MC-001 (S.D. Ga. filed May 8, 2017),
Docs. 1, 2, 3.)
The United States Magistrate Judge concluded that
Plaintiff had cured the subject matter jurisdiction issues that
eventually led to the dismissal of the 2015 Action.
Aug. 23, 2017, Doc. 7, at 2.)
(Order of
On May 1, 2018, the Court granted
Defendant's motion to dismiss for lack of personal jurisdiction
after finding that Plaintiff failed to show Defendant had minimum
contacts with Georgia.
Now,
Plaintiff
has
(Order of May 1, 2018, Doc. 35, at 14.)
continued
his
practice
motions after dismissal of his claims.
of
filing
numerous
II.
DISCUSSION
Since October 23rd, Plaintiff has filed twelve motions in
this case.
73.)
(Docs. 47, 48, 49, 50, 51, 53, 54, 60, 64, 65, 70,
Each motion stems either from Plaintiff's disagreements with
the Court's decision to dismiss Defendant or his quarrels with
defense counsel.
Because Plaintiff continues to file motion after
motion after this case was closed. Defendant moves for sanctions
pursuant to Federal Rule of Civil Procedure 11.
(Doc. 63.)
The
Court will address each motion in turn.
A.
Plaintiff's Motions for Reconsideration
Plaintiff made six filings challenging the Court's May 1st
Order finding it
had
no
personal jurisdiction
(Docs. 40, 41, 42, 49, 50, 51.)
over
Defendant.
Plaintiff's first three filings
are letters submitted within three weeks of the Court's May 1st
Order.
motion
(Docs. 40, 41, 42.)
to
vacate
reconsideration
the
under
Five months later Plaintiff made a
Court's
Federal
judgment
Rule
of
and
Civil
two
motions
Procedure
for
60(b).
(Docs. 49, 50, 51.)
Motions for reconsideration can be made pursuant to Rule 59
or 60, Shaarbay v. State of Fla., 269 F. App'x 866, 867 (11th Cir.
2008), and therefore the court must determine the Rule under which
to consider Plaintiff's motions.
See, e.g.. Brown v. Spells, 2011
WL 4543905 (M.D. Ga. Sept. 30, 2011) (resolving whether a motion
for reconsideration should be decided under Rule 59 or 60).
The Court does not consider Plaintiff s three May letters to
be motions.1
The documents are not styled as motions and Plaintiff
even states 'Mi]f you wish I will make a formal motion to vacate."
(May 24, 2018 Letter, Doc. 42, at 2.)
Because those letters are
not motions, the first properly filed motion to vacate or motion
for reconsideration was made on October 23, 2018 — almost five
months past the twenty-eight-day deadline imposed for Rule 59(e)
motions.
Fed. R. Civ. P. 59(e).
The Court will therefore analyze
Plaintiff's motion to vacate and motions for reconsideration under
Rule 60(b), which allows motions to be made within a reasonable
time.2
Fed. R. Civ. P. 60(c)(1); see Mahone v Ray, 326 F.3d 1176,
1178 n.l (11th Cir. 2003).
Rule 60(b) provides that a Court may relieve a party from
judgment
in
a
limited
number
of circumstances
including:
(1)
mistake or excusable neglect; (2) newly discovered evidence; (3)
fraud; (4) if the judgment is void; or, (5) if the judgment has
been
satisfied.
Fed.
R.
Civ.
P.
60(b)(l)-(5).
The
catchall
provision of Rule 60(b) authorizes relief from judgment based on
"any other reason that justifies relief."
1 Document 42 is currently docketed as a motion.
Fed. R. Civ. P. 60(b)(6).
The Clerk is DIRECTED to
terminate that motion.
2 A motion under Rule 60(b)(l)-(3) must be made no more than a year after entry
of the judgment. Fed. R. Civ. P. 60(c)(1).
4
Relief under Rule 60(b)(6) is an ''extraordinary remedy which may
be invoked
only
upon
a
showing
of exceptional circumstances."
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)
(citation omitted).
Plaintiff first argues that the Court erroneously treated
Defendant's motion to dismiss for lack of personal jurisdiction as
a motion for directed verdict.
Plaintiff further argues that the
Court misconstrued the timeline of events and ruled incorrectly
that Defendant had legal authority under Jessica Neville's will to
transact in the Bulloch Property.
In support, Plaintiff submits
purported affidavits^ that repeat many of the legal conclusions of
his Complaint, namely that Defendant committed fraud during the
Bulloch Property transactions.
Plaintiff's arguments do not justify relief under Rule 60(b).
He points to no new evidence or "any other reason that justifies
relief."
same
Fed. R. Civ. P. 60(b)(6).
allegations
filings.
he
made
in
his
Instead, Plaintiff repeats the
Complaint
and
numerous
prior
Simply disagreeing with the Court's ruling is not grounds
for relief under Rule 60(b).
See Preserve Endangered Areas of
Cobb's History, Inc. v. U.S. Army Corps of Eng'r, 916 F. Supp.
1556, 1560 (N.D. Ga. 1995) ("A motion for reconsideration is not
3 Plaintiff's "Affidavits" are not notarized and do not comply with 28
U.S.C. § 1234's required language for unsworn declarations under penalty of
perjury.
an opportunity for the moving party . . . to instruct the court on
how the court ^could have done it better' the first time.").
Contrary to Plaintiff's contention, the Court did not treat
Defendant's motion to dismiss for lack of personal jurisdiction as
a
motion for directed
verdict.
A directed
verdict is a
made during a jury trial, pursuant to Rule 50.
50.
motion
See Fed. R. Civ. P.
Such a motion is unrelated to a pre-answer motion to dismiss
under Rule 12(b)(2).
Additionally, the Court did not rule that the 2006 real estate
transactions concerning the Bulloch Property were permitted by the
will and trust.
The Court merely recited the parties' respective
allegations about the events of 2006 and 2008 to determine whether
Plaintiff
met
his
burden
jurisdiction over Defendant.
to
show
the
Court
had
personal
(Order of May 1, 2018, at 6-7.)
Plaintiff did not carry his burden then and has not carried his
burden now for relief under Rule 60(b).
Accordingly, Plaintiff's
motion to vacate and motions for reconsideration are denied.
B.
Plaintiff's Motion to Reinstate Magistrate Judge Smith
Plaintiff
alleges that the
Court
had
ulterior
motives in
reassigning this case from United States Magistrate Judge G.R.
Smith to Magistrate Judge James E. Graham.
He requests Judge Smith
be reinstated because his removal from the case "reeks of bias, is
patently unfair and is clearly ill-considered" as well as "very
improper
and
almost
unprecedented
in
federal
jurisprudence."
(Pl.'s Mot. to Reinstate Original Magistrate, Doc. 47, at 1-2.)
In reality, the reason for the reassignment is a simple one.
Judge Smith retired from the bench after thirty years of service
to the Southern District of Georgia.
Judge Graham, an experienced
Magistrate Judge who served in this District for many years, has
agreed to handle Judge Smith's caseload until a successor is
appointed.
Doc. 1.)
Judge
(See In re Magistrate Judge Assignments, 4:16-MC-016,
Further, Plaintiff's motion provides no basis to conclude
Graham
has
a
personal
requiring his recusal.
bias
against
Plaintiff,
See 28 U.S.C. § 144.
thereby
As such. Plaintiff's
Motion to Reinstate Original Magistrate is denied.
C.
Plaintiff's Motions to Sanction Defense Counsel
Plaintiff
moves
the
Court
to
issue
a
show
cause
order
to
Defendant to specify why the Court should not impose sanctions or
other penalties for the actions of defense counsel, Susan Warren
Cox and Andrew John Lavoie.
Doc. 48.)
(Pl.'s Mot. for Order to Show Cause,
Plaintiff accuses both defense attorneys of failing to
read or respond to his communications, acting in bad faith, relitigating
decided
issues,
and
pretending
their
client
was
blameless.
In a subsequent motion. Plaintiff requested the Court
disqualify Mr. Lavoie from the case for failing to honor previous
stipulations, not responding to Plaintiff's communications, and
making accusations of harassment by Plaintiff.
(Pl.'s Mot. to
Disqualify Andrew Lavoie, Doc. 53.)
Disqualification of an attorney ''is a harsh sanction, often
working substantial hardship on the client" and should "be resorted
to sparingly."
Norton v. Tallahassee Mem^1 Hosp., 689 F.2d 938,
941 n.4 (11th Cir. 1982); see also Bernocchi v. Forcucci, 279 Ga.
460, 463 (2005).
There must be "compelling reasons" to override
a parties' choice of counsel, and the burden to prove those reasons
falls on the party bringing the motion.
In re Bellsouth Corp.,
334 F.3d 941, 961 (11th Cir. 2003).
In this Court, the Georgia Rules of Professional Conduct and
the American Bar Association's Model Rules of Professional Conduct
govern attorney behavior.
LR 83.5(d) SDGa.
The Georgia Rules
warn that a motion to disqualify brought by the opposing party
"should be
viewed
with caution . . . for it can be misused
technique of harassment."
as a
Ga. R. Prof'l Conduct 1.7, cmt. 15.
To
order a disqualification, a court must identify a specific rule of
conduct
and
conclude
that
the
attorney
violated
that
rule.
Herrmann v. GutterGuard, Inc., 199 F. App'x 745, 752 (11th Cir.
2006).
Plaintiff's motions identify no specific rule that either Ms.
Cox or Mr. Lavoie violated.
His motions are supported only by
purported affidavits in which Plaintiff accuses defense counsel of
misconduct with little to no factual support.
8
Plaintiff contends
defense counsel "[aJcted in bad faith by failing to acknowledge
that plaintiff has legitimate claims" and "[pJretended that their
client (Betsy McCaghren) was entirely blameless."
for
Order
to
Show
Cause,
at
2.)
These
(Pl.'s Motion
actions
are
more
appropriately characterized as zealous advocacy for the client,
not misconduct requiring disqualification.
Plaintiff further alleges that defense counsel has ''[r]e-
litigated issues that were decided stare decisis."
(Id. at 1.)
Plaintiff is referring to the Magistrate Judge's decision to allow
his claims to proceed from the screening stage, pursuant to 28
U.S.C. § 1915(e)(2). (See Order of Aug. 23, 2017, at 2.) Surviving
screening, however, does not preclude Defendant from litigating
the issues in this case, including filing a motion to dismiss for
lack of personal jurisdiction.
carried
his
burden
to
show
Simply put. Plaintiff has not
^'compelling
reasons" to
disqualify
defense counsel or issue any other sanctions against Defendant.
Plaintiff's Motion for Order to Show Cause and Motion to Disqualify
are therefore denied.
D. Plaintiff's Discovery Motions
Next, Plaintiff moves for an accounting of the transactions
Defendant made in Jessica Neville's estate and for permission to
conduct
limited
discovery
in
this
case.
(Pl.'s
Mot.
for
Accounting, Doc. 54; Pl.'s Mot. for Leave of Ct. to Conduct Limited
Disc., Doc. 73.)
has
already
Plaintiff's motions must be denied.
determined
it
lacks
personal
The Court
jurisdiction
over
Defendant and, as discussed above, will not disturb that ruling.
This
case
is
closed
and
will
remain
closed.
It
is
therefore
inappropriate to allow Plaintiff to conduct discovery or order the
production of documents from Defendant.
Accounting
and
Motion
for
Leave
of
Plaintiff's Motion for
Court
to
Conduct
Limited
Discovery are both denied.
E. Plaintiff's Motion for Suxnmasry Judgment
Plaintiff made a motion for partial summary judgment on his
fraud claims.
(Pl.'s Mot. for Partial Summ. J., Doc. 64.)
The
Court, however, has already entered a final judgment in this action
and
determined
Defendant.
it
does
not
have
personal
jurisdiction
over
As such, the Court cannot presently consider a summary
judgment motion from Plaintiff and his motion is denied.
F. Plaintiff's Motion to Strike
Plaintiff's
final
motion
requests
the
Court
strike
every
single pleading Defendant filed in response to Plaintiff's twelve
pending motions.
70.)
(Pl.'s Mot. to Strike All Resp. Pleadings, Doc.
Plaintiff cites to Rule 12(f), which permits a court to
^^strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent or scandalous matter."
12(f).
Fed. R. Civ. P.
Rule 12(f), however, only applies to pleadings.
10
Id.; see
also Newsome v. Webster, 843 F. Supp. 1460, 1464 (S.D. Ga. 1994).
Rule 7(a) defines pleadings as complaints, answers, and replies to
answers.
Fed. R. Civ. P. 7(a).
A response brief is not a pleading
and cannot be struck under Rule 12(f).
Accordingly, Plaintiff's
Motion to Strike All Responsive Pleadings is denied.^
6. Defendant's Motion for Sanctions
Defendant
moves
under
Rule
11
for
the
Court
to
impose
sanctions on Plaintiff for filing numerous frivolous motions to
harass
Defendant,
for
sending
threatening
emails
to
defense
counsel, and for needlessly causing Defendant to incur thousands
of dollars of legal fees.
Defendant
(Def.'s Mot. for Sanctions, Doc. 63.)
requests that sanctions include
a
money judgment of
$27,525.56 for legal fees and costs incurred over the course of
Plaintiff's seemingly endless string of lawsuits filed against
Defendant regarding Jessica Neville's estate.
Under Rule 11, when an unrepresented party files a motion or
pleading
he
certifies
that it
is
not
being
presented
for
an
improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the costs of litigation.
Fed. R. Civ. P. 11(b).
When an opposing party files a motion for sanctions alleging a
Rule 11 violation, the offending party is given a twenty-one-day
Having appropriately addressed each of Plaintiff's motions the Court finds a
hearing on the matter unnecessary. Therefore, Plaintiff's motions for hearing
(docs. 60, 65) are DENIED.
11
safe harbor to correct or withdraw the filing and thereby avoid
sanctions.5
See Kaplan v. DaimlerChrysler, A.G./ 331 F.3d 1251,
1255 (11th Cir. 2003).
If no corrective action is taken. Rule 11
sanctions — including monetary sanctions and attorney's fees — may
be
awarded
upon
a
showing
that
the
offending
objectively unreasonable motion or case.
party
filed
an
See Johnson v. Barnes,
283 F. Supp. 2d 1297, 1301 n.2 (S.D. Ga. 2003); see also Indus.
Risk Ins, v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1448
(11th Cir. 1998) (''Improper purpose may be shown by excessive
persistence in pursuing a claim or defense in the face of repeated
adverse rulings . . . . Rule 11 is intended to reduce frivolous
claims.").
To
determine
the
appropriate
sanction,
a
court
should
consider:
(1)
Whether
the
improper
conduct
was
willful,
or
negligent; (2) whether it was part of a pattern of
activity, or an isolated event; (3) whether it infected
the entire pleading, or only one particular count or
defense; (4) whether the person has engaged in similar
conduct in other litigation; (5) whether it was intended
to injure; (6) what effect it had on the litigation
process in time or expense; (7) whether the responsible
person is trained in the law; (8) what amount, given the
financial resources of the responsible person, is needed
to deter that person from repetition in the same case;
and (9) what amount is needed to deter similar activity
by other litigants.
s Defendant served a copy of her motion for sanctions on Plaintiff and gave him
the required twenty-one-day "safe harbor" to withdraw or correct the violative
motions before filing for sanctions.
See Fed. R. Civ. P. 11(c)(2).
12
McDonald v. Emory Healthcare Eye Ctr., 391 F. App'x 851, 853 (11th
Cir. 2010) (citing Fed. R. Civ. P. 11, advisory committee notes).
Furthermore, "[t]he conduct and resources of the party to be
sanctioned
are
relevant
to
sanctions to be imposed."
(11th
Cir.
1998)
the
determination
of
the
amount
of
Baker v. Alderman, 158 F.3d 516, 528
(citation
omitted).
A
party's
IFF
status,
however, does not preclude monetary sanctions under Rule 11.
Moon
V. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Plaintiff
considered
a
is
no
""serial
stranger
to
filer."
this
This
Court
action
and
is
must
the
third
Plaintiff has filed in this Court on the same facts.
May 1, 2018, at 3 n.2.)
now
be
case
(Order of
Plaintiff also filed five frivolous
lawsuits in the Northern District of Georgia within the last six
years.
(2015 Case, Doc. 7, at 1 n.l (detailing Northern District
cases filed by Plaintiff).)
Plaintiff
a
""vexatious
Florida state courts have deemed
litigant"
and
severely
ability to file any new cases in the state.
1, Ex. A.)
Plaintiff
parties.
restricted
his
(2015 Case, Doc. 48-
Finally, the Northern District of Florida sanctioned
for
(Id.)
filing
frivolous
motions
and
harassing
opposing
Those sanctions included $1,690.00 in attorney's
fees and $3,380.00 in court fines.
(Id.; see also
Neville
v.
Botsford, et al.. Case No. 1:06-CV-199 (N.D. Fla. 2010), Doc. 122.)
13
In
this
Court,
Plaintiff
has
been
repeatedly
warned
that
continuing to file frivolous motions will restrict his ability to
seek redress.
45, 52.)
(Order of Aug. 23, 2017, at 2 n.l; 2015 Case, Docs.
In fact. Plaintiff was sanctioned by the Court sua sponte
in the 2015 Case because of his penchant for filing motions that
repeat
frivolous
arguments.
(2015
Case,
Doc.
52,
at
8-10.)
Plaintiff was barred from filing any more motions in the 2015 Case
and restricted from filing any new cases using IFP status without
having his complaint screened under 28 U.S.C. § 1915.
case
was
only
concluded
screening.
allowed
Plaintiff's
to
proceed
allegations
after
were
the
Magistrate
sufficient
(Order of Aug. 23, 2017, at 2.)
(Id.)
to
This
Judge
survive
Now, Plaintiff has
continued to file frivolous motions repeating arguments already
refuted
by the
Court
and
has engaged in
a
course
of conduct
intended to harass Defendant and defense counsel.
Perhaps most alarming are the numerous threatening emails
Plaintiff sent to defense counsel. (Aff. Of Elizabeth McCaghren,
Doc.
63-2,
4-12.)
When emailing
his frivolous
motions to
defense counsel. Plaintiff made threatening and harassing comments
including '"the knife slips in, ^'you and Betsy McCaghren are going
"
to learn about the pitfalls of playing with matches," and ""can you
hear the guillotine?"
(Id.
5, 9, 12.)
14
Plaintiff's harassment does not end there.
In January 2018,
he arranged a deposition of Florence Van Arnam in Gainesville,
Florida.
(Id. SI 3.)
Defendant and
her husband travelled from
North Carolina to Gainesville at considerable time and expense.
(Id.)
Plaintiff never showed up for the deposition or formally
canceled, thereby wasting Defendant, her family, Ms. Van Arnam,
and
defense
counsel's
time
and
resources.
(Id.)
The
no-show
deposition cost Defendant $3,408.06 in attorneys' fees and travel
expenses.
(Id.; see also Doc. 21, at 2-5.)
Suffice to say that
Plaintiff has engaged in a systematic pattern of harassment of
Defendant and defense counsel.
Considering the factors in McDonald, the Court finds both
monetary sanctions and filing restrictions are necessary to deter
Plaintiff from continuing to harass Defendant and her counsel.
Plaintiff has already been sanctioned once in this Court and once
in the Northern District of Florida and is considered a vexatious
litigant in Florida state courts.
Filing restrictions alone did
not deter him from continuing to file frivolous motions or harass
Defendant and defense counsel.
Thus, monetary sanctions must now
be imposed.®
® Defendant's motion for sanctions (doc. 63) is GRANTED IN PART AND DENIED IN
PART.
While the Court finds that monetary sanctions are appropriate,
Defendant's request for $27,525.26 in legal fees and costs incurred over
multiple lawsuits is too broad.
See Fed. R. Civ. P. 11(c)(2) ("If warranted,
the court may award to the prevailing party the reasonable expenses, including
attorney's fees, incurred for the motion.") (emphasis added).
15
Accordingly, THE COURT IMPOSES THE FOLLOWING SANCTIONS ON
PLAINTIFF:
1.
The Court PERMANENTLY ENJOINS Plaintiff Robert Neville from,
either directly or indirectly, litigating the administration of
Jessica Neville's estate or the Bulloch Property transactions any
further in this Court.
2.
The Clerk SHALL NOT DOCKET any further motions or papers from
Plaintiff in this case, except a notice of appeal.
Any papers
referring to this case other than a notice of appeal SHALL be
returned to Plaintiff unfiled.
If Plaintiff files
a
notice
of
appeal, the Clerk SHALL forward a copy of this Order, the notice
of appeal, and the dismissed complaint to the Court of Appeals.
Plaintiff SHALL remain responsible for appellate filing fees or he
may move this Court to grant IFP status on appeal.
3.
As to any future civil actions sought to be commenced
forma
pauperis {''IFP") by Plaintiff, the Clerk SHALL continue to follow
the prior filing system imposed on Plaintiff for docketing the
complaint.
(See Neville v. McCaqhren, Case No. 6:17-MC-001, Doc.
1, at 8-10.)
4.
The Court also imposes a $2,000 sanction against Plaintiff,
immediately payable to the "Clerk of Court, Southern District of
Georgia."
16
5.
The
Defendant
Court
is
may
also
invited
to
award
attorney's
submit
an
fees
itemized
to
Defendant.
statement
of
her
attorney's fees and costs incurred in connection with this motion
for sanctions within THIRTY (30) DAYS of this Order,
Plaintiff
may respond within FIFTEEN (15) DAYS of service of this statement
upon
him
but
must
respond
in
one
filing.
The
restrictions
described above shall not apply to Plaintiff's response.
III.
CONCLUSION
Based on the foregoing, Plaintiff's motions (docs. 47, 48,
49, 50, 51, 53,, 54, 60, 64, 65, 70, 73) are DENIED.
DIRECTED to terminate Document 42 as a motion.
The Clerk is
Defendant's motion
for sanctions (doc. 63) is GRANTED IN PART AND DENIED IN PART and
sanctions are hereby imposed.
This case shall remain CLOSED.
ORDER ENTERED at Augusta, Georgia, this
day of January,
2019.
JL RAIIJ:)^ HALL, CHIEF JUDGE
UNITED/states DISTRICT COURT
SnUTtiERN DISTRICT OF GEORGIA
17
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