DIRECT ENTERPRISES, INC. et al v. SENSIENT COLORS LLC
ORDER denying 124 Motion for Remedy for Plaintiffs' Loss of Evidence; denying 131 Motion for Leave to File Fourth Amended Complaint and denying 132 Motion for Remedies for Spoliation of Evidence, given the unavoidable prejudice to Spectra who bears no fault in the destruction of the colorant samples. Signed by Magistrate Judge Tim A. Baker on 7/13/2017. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DIRECT ENTERPRISES, INC., OLYMPUS
SEED TREATMENT FORMULATOR, INC.,
SENSIENT COLORS LLC, SPECTRA
ORDER ON PENDING MOTIONS
Plaintiffs Direct Enterprises, Inc. and Olympus Seed Treatment Formulator, Inc.
commenced this action against Defendant Sensient Colors LLC, asserting claims for breach of
contract, breach of warranties, and fraud. Plaintiffs purchased colorants from Sensient to add to
agricultural seed treatments Plaintiffs sold to their customers. They allege that some of the
colorants were defective and caused damage to the seed treatments. Third-Party Defendant
Spectra Colorants, Inc. manufactured the colorants and sold them to Sensient. This cause is
before the Court on three motions: (1) Plaintiffs’ Motion to Modify the Amendment Deadline to
File a Fourth Amended Complaint, (2) Defendant Sensient’s Motion for Remedy for Plaintiffs’
Loss of Evidence, and (3) Plaintiffs’ Motion for Remedies for Spoliation of Evidence. For the
reasons that follow, the motions are denied.
Plaintiffs filed their complaint against Sensient in August 2015. Because they had not
sufficiently alleged a jurisdictional basis, the Court ordered them to file an amended complaint.
They did so in September 2015. Plaintiffs filed a second amended complaint in December 2015
to address issues identified by Sensient that may have been raised in a motion to dismiss. In
June 2016, Sensient filed its amended answer and third-party complaint, alleging that Spectra
was obligated to defend and indemnify Sensient against Plaintiffs’ claims.
The Court held a pretrial conference in November 2016 in an effort to assist the parties
with a discovery dispute regrading Plaintiff’s discovery responses that asked Olympus to identify
by lot number, delivery date, and product description, each colorant that it purchased from
Sensient that it contends “failed to perform as expected or warranted.” The Court directed
Olympus to “conduct further investigations to determine the most specific identifications that it
can provide of the defective colorants that it purchased” and supplement its responses by
November 18, 2016. [Filing No. 72 at 3.]
Olympus’ supplemental answer to the interrogatory stated:
Around October 2, 2012 Olympus had used its previous orders of red colorant
from Sensient and requested future shipments of red pearl colorant. On
information and belief, the faulty colorants consist of those that were shipped and
delivered after October 2, 2012, consisting of colorants with a pearlescent
additive and particularly including a red pearlescent colorant that was
manufactured with excessive amounts of ammonia.
[Filing No. 145-1 at 2.]
In January 2017, Plaintiffs moved for leave to file a third amended complaint, asserting
that the proposed amendments would refine the factual basis for their claims and refine their
theories of liability. In particular, they sought to plead their contractual relationship with
Sensient “with additional specificity,” add facts pertaining to the fraud claims, add fraud claims,
and add claims under the Indiana Products Liability Act. Plaintiffs filed the motion before the
January 19, 2017, deadline for motions to amend the pleadings. The Court granted the motion,
and in February 2017 Plaintiffs filed their third amended complaint, which is their fourth
complaint in this case. Four counts of the third amended complaint allege that “the pearlescent
colorants” destroyed Plaintiffs’ seed treatments. [Filing No. 95 ¶¶ 91, 96, 107.] The other three
counts—claims for breaches of implied warranties and product liability claim—likewise are
clear that the alleged culprits were the “pearlescent colorants”. [Id. ¶¶ 113, 120, 127-31.]
Defendants then filed motions to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Sensient asserts several grounds for dismissing the fraud and
constructive fraud claims, including noncompliance with Rule 9. Sensient also seeks dismissal
of the claims for breach of contract, breach of express warranty, and product liability. Sensient
argues that all claims by Direct Enterprises, Inc. should be dismissed because the complaint does
not allege a factual basis for third-party beneficiary status. Spectra seeks dismissal of the
products liability claim against it, arguing that the claims are time barred.
In February and March of this year, Sensient supplemented its discovery responses. In
early April, Spectra provided its first supplemental discovery responses.
On May 5, 2017, Plaintiffs filed their Motion to Modify Amendment Deadline to File a
Fourth Amended Complaint, contending that they recently received new evidence about the
formulas, ingredients, and manufacturing of the colorant blends involved in this case. They
maintain that the evidence directly supports their pending claims.
The May 19, 2017, discovery deadline has passed. The dispositive motion deadline is
August 21, 2017. The case is set for trial in January 2018.
III. Motion to Modify Amendment Deadline and File Fourth Amended Complaint
In moving to modify the amendment deadline, Plaintiffs assert that the recent discovery
from both Defendants provided the formulas, ingredients, product codes, and manufacturing
codes that allowed Plaintiffs to correlate shipments and containers of colorants. They state that
the discovery also provided the correlation between manufacturing codes, product sample codes,
finished product codes, and the acrylic-surfactant distinction between different products. [Filing
No. 163 at 7.] The discovery, according to Plaintiffs, also indicated that every batch of colorant
is different and that basic red and pearlescent red shared a common ingredient susceptible to
“thickening.” [Id. at 9.] They argue that the proposed amendments add facts supporting their
claims and refute Sensient’s motion to dismiss. They contend that Defendants will not be
prejudiced by the proposed amendments because the amendments are based on their own
documents. Plaintiffs also argue that Defendants cannot claim prejudice because they have not
filed an Answer to the third amended complaint and are in default.
Defendants oppose Plaintiffs’ motion. Sensient argues that the new evidence is not
important and the proposed amendments are not justified. It also argues that if the amendments
are allowed, new discovery, new deadlines, and a new trial date will be necessary. Sensient
maintains that Plaintiffs have limited their claims in this case to the pearlescent colorants but
now seek to expand their claims to include the non-pearlescent colorants, add new theories of
fraud, and allege another express warranty claim, all of which is untimely and prejudicial.
Likewise, Spectra contends that Plaintiffs have limited themselves to certain legal theories and if
the amendments are allowed, nearly all the discovery that has taken place and many of the
pleadings will have been a waste of time and resources.
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend shall be freely
granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). When a motion for leave to amend
is filed after the deadline to amend, Rule 16(b)(4) applies and requires a showing of “good
cause.” Fed. R. Civ. P. 16(b)(4); see Arrigo v. Link, 836 F.3d 787, 797 (7th Cir. 2016). In
deciding whether a party has shown good cause, “the primary consideration … is the diligence of
the party seeking amendment.” Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011).
The disclosure of new evidence after the deadline for amendments can constitute “good
cause” for seeking leave to amend after the deadline in the scheduling order. See, e.g., CMFG
Life Ins. Co. v. RBS Secs. Inc., No. 12-cv-037-wmc, 2013 WL 4483068, at *16 (W.D. Wis. Aug.
19, 2013) (allowing supplemental allegations that summarized evidence disclosed in discovery);
Armitage v Apex Control Sys., Inc., Cause No. 2:08-cv-45-WTL-WGH, 2010 WL 4318846, at
*1-*2 (S.D. Ind. Oct. 26, 2010) (finding good cause where plaintiff discovered basis for his new
claims through discovery). To the extent the late discovery responses disclosed a factual basis
for a newly asserted claims, and that basis was not previously known and could not have been
known to Plaintiffs, this would weigh in favor of finding good cause needed to satisfy Rule
16(b)(4). However, as Spectra points out, several of the proposed amendments are unrelated to
the recent discovery and are based on information available to Plaintiffs long ago. For example,
Plaintiffs’ knowledge of their timeline for manufacturing and shipping seed treatment blends is
not dependent on the recent discovery from Defendants. [Filing No. 131-5 at 11-12, ¶¶ 58-61.]
Plaintiffs cannot use the late discovery responses as a justification to bolster their factual
allegations where the information sought to be added was already available to them.
Even assuming that Plaintiffs can clear Rule 16(b)(4)’s hurdle, they must show that the
proposed amendments should be allowed. Under Rule 15(a), a district court has broad discretion
to deny leave to amend where there is a good reason such as undue delay, repeated failure to cure
deficiencies, or undue prejudice. See, e.g., Mulvania v. Sheriff of Rock Is. Cnty., 850 F.3d 849,
855 (7th Cir. 2017); Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017).
Even without the newly disclosed evidence, Plaintiffs should have known or could have known
whether the non-pearlescent colorants damaged their seed treatments. They certainly knew
which seed treatments were damaged: they had customer invoices, credit memos, returns, and
shipping records to establish which seed treatments were defective and returned. Plaintiffs could
have identified which colorants were used in the damaged treatments by referring to Olympus’s
blend sheets. 1 Also, as Sensient asserts, Plaintiffs could have provided a declaration indicating
“what they knew, when they knew it, and what they did to investigate the foundation for their
new legal theories,” [Filing No. 145 at 6], in an effort to support their late attempt to amend their
pleading for a fourth time, but they did not, and the opportunity for doing so has passed.
Moreover, allowing an amendment at this late stage of the proceedings would unduly
prejudice Defendants. 2 The deadline to amend the pleadings was January 19, 2017. Discovery
is now closed, and the August 21, 2017 dispositive motion deadline is fast-approaching.
Plaintiffs already have had several opportunities to cure any deficiencies in their complaint and
add new theories. Plaintiffs’ theory has been that only the pearl colorants were defective, as
indicated in Olympus’s supplemental interrogatory answer provided in response to the Court’s
order and in their third amended complaint. Plaintiffs protest that their pleadings have included
Olympus prepared blend sheets for each new batch of seed treatment; the blend sheets include the date
of blending and the names and lot numbers of each blend ingredient.
In arguing that Defendants cannot be prejudiced because they are in default, Plaintiffs cite General
Mills, Inc. v. Kraft Foods Global, Inc., 495 F.3d 1378 (Fed. Cir. 2007). The case decided that Rule
12(a)(4) does not enlarge the time for filing an answer to an amended complaint when the time for
responding to the original complaint has passed. Id. at 1379. But contrary authority exists. See, e.g., Ello
v. Brinton, Cause No. 2:14-CV-299-TLS, 2015 WL 7016462, at *4 (N.D. Ind. Nov. 10, 2015) (holding
that the time for filing an answer to the amended complaint was tolled because defendant filed a partial
motion to dismiss before the deadline for filing a responsive pleading); Shah v. KIK Int’l LLC, No. 3:06CV-712 RLM, 2007 WL 1876449, at *1 (N.D. Ind. June 26, 2007) (holding the pendency of a motion to
dismiss tolls the time for filing an answer to amended counterclaims). These authorities are more
persuasive because the same reasoning for tolling the time to file an answer applies when an amended
complaint has been filed. Requiring an answer to an amended pleading when a motion to dismiss pends
“potentially results in duplicative pleadings, confusion regarding the proper scope of discovery,
unnecessary expenses, and wasted time.” Shah, 2007 WL at *1. Defendants are not in default.
all colorants and were not limited to the pearlescent colorants. However, the key allegations in
each claim of the third amended complaint identify only the pearlescent colorants as being at
issue. [See Filing No. 95, ¶ 91 (fraud/constructive fraud claim alleging “Plaintiffs’ seed
treatments were destroyed by the pearlescent treatments”), ¶ 96 (breach of contract claim
alleging “pearlescent colorants …were unsuitable for seed treatments” and destroyed them), ¶
107 (express warranty claim as to “pearlescent colorants”), ¶ 113 (implied warranty as to
“pearlescent colorants”), ¶ 120 (alleging implied warranty as to “pearlescent colorants”), ¶ 12730 (product liability claims as to “pearlescent colorants”).] If Plaintiffs were allowed to change
their theories, Defendants likely would have to conduct additional discovery on Plaintiffs’ use of
the non-pearl colorants. 3 But discovery has closed, and it would have to be re-opened. What’s
more, the need for any further discovery almost unavoidably would affect the recently extended
August 21, 2017 dispositive motion deadline. The time period between that deadline and the
January trial setting is quite short already. Allowing an amendment to the complaint at this point
in time would ultimately jeopardize the trial setting.
Leave to amend should be freely given when justice requires, but justice does not require
that Plaintiffs be allowed to amend their pleadings and file a fifth complaint at this late stage of
the proceedings. Therefore, even if Plaintiffs have shown good cause for seeking to amend after
the deadline for amendments has passed, the motion to modify the amendment deadline to file a
fourth amended complaint will be denied.
For example, Sensient asserts that it would request shipping, sales, and credit records corresponding to
the seed treatments made from non-pearl colorants. Sensient anticipates having to take additional
depositions of Plaintiffs’ President and COO to inquire about the non-pearl colorants. And it argues that
it has not explored its main defense with respect to the non-pearl colorants—that the seed treatments
hardened because Plaintiffs failed to advise their customers they had a short shelf-life. Plaintiffs dispute
that further discovery would be required, maintaining that they already have provided invoices, credit
memos, etc. for all damaged seed treatments regardless of the colorant used and that Sensient has
conducted ample discovery on the shelf-life defense.
IV. Spoliation of Evidence
Because the Court exercises diversity jurisdiction in this matter, spoliation is governed by
state law. Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806 (7th Cir. 1995) (holding state
law governs spoliation in diversity case). Under Indiana law, spoliation is “‘[t]he intentional
destruction, mutilation, alteration, or concealment of evidence.’” Cahoon v. Cummings, 734
N.E.2d 535, 545 (Ind. 2000) (quoting Black’s Law Dictionary 1409 (7th ed. 1999)); see also J.S.
Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005). Where a party has
exclusive possession of evidence, Cahoon, 734 N.E.2d at 545, the “intentional … spoliation of
that evidence may be used to establish an inference that the spoliated evidence was unfavorable
to the party responsible.” Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 351 (Ind. 2005).
“[E]vidence of spoliation does not relieve a party of the burden of proving [its] case.” Passmore
v. Barrett, Cause No. 2:13-cv-290, 2015 WL 2412709, at *2 (N.D. Ind. May 21, 2015). The trial
court has discretion to instruct the jury on the adverse inference that may arise from spoliation.
J.S. Sweet Co., 400 F.3d at 1032.
The Court may also have the inherent power to sanction a party for misconduct, including
the spoliation of evidence. See Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)
(recognizing the district court’s inherent power to sanction parties in appropriate cases); Smith v.
Borg-Warner Auto. Diversified Transmission Prods. Corp., No. IP 98-1609-C-T/G, 2000 WL
1006619, at *9 (S. D. Ind. July 19, 2000) (same). A court’s inherent powers, however, “must be
exercised with restraint and discretion.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980).
A. Sensient’s Motion for Remedy for Plaintiffs’ Loss of Evidence
Sensient moves for an order prohibiting Plaintiffs from seeking consequential damages
related to seed treatments identified on lost or misplaced blend sheets (or build sheets). [Filing
No. 124.] Olympus prepared a blend sheets for each new batch of seed treatment; the blend
sheets include the date of blending and the names and lot numbers of each blend ingredient.
Olympus’s Chief Operating Officer Dennis Tauchen used the blend sheets to prepare a chart or
spreadsheet of the credits Plaintiffs offered their customers for “bad drums” of seed treatment.
Tauchen testified that he had a blend sheet for each entry on his chart. In order to evaluate the
chart and prepare its own damages analysis, Sensient requested the blend sheets Tauchen had
used. Plaintiffs produced some, but not all of them because some were lost or misplaced.
Sensient claims prejudice because it asserts the blend sheets are the only
contemporaneously prepared record of whether a particular seed treatment was blended with
pearl or non-pearl colorant. Sensient maintains it needs the blend sheets to ensure that Plaintiffs’
calculation of the value of the damaged seed treatments and thus consequential damages
excludes seed treatments made from non-pearl colorants.
Several considerations weigh in favor of denying Sensient’s motion. First, although the
blend sheets may be the only contemporaneous records of whether particular seed treatments
were blended with pearl or non-pearl colorant, other records exist from which Defendants can
test Plaintiffs’ calculations of the damaged seed treatments. These include Olympus’s customer
invoices, credit memos, returns, and shipping records, which can be used to identify damaged
seed treatments. Sensient can offer testimony from its employees and Plaintiffs’ employees in
order to identify the damaged seed treatments and types of colorants used. Also, Plaintiffs state
that they still have some of the defective seed treatments in storage and have offered to allow
Sensient to inspect them. (Sensient has declined.)
Furthermore, Sensient has not presented any evidence to suggest that the missing blend
sheets were intentionally, rather than accidentally or negligently, destroyed. Although Sensient
argues that a sanction for spoliation is not limited to intentionally destroyed evidence, neither
case it cites applies Indiana law and both cases involve more egregious conduct by the party
ultimately sanctioned. See Langley v. Union Elec. Co., 107 F.3d 510, 512 (7th Cir. 1997) (loss
of furnace where family was poisoned by carbon monoxide fumes presumably caused by an
unventilated furnace); Marrocco v. Gen. Motors Corp., 966 F.2d 220, 221-22 (7th Cir. 1992) (in
one case considered on appeal, plaintiffs’ experts’ inspection of the motor vehicle involved in the
car accident destroyed allegedly defective axle and violated a protective order; in the other case,
the defendant’s gross negligence resulted in the loss of material and irreplaceable evidence
needed to prove a manufacturing or design defect and also violated a protective order). Gribben
v. Wal-Mart Stores may have suggested that both negligent and intentional destruction of
evidence could support a spoliation claim, but the plaintiff in that case claimed only intentional
spoliation, 824 N.E.2d at 350, and the case does not hold that negligent destruction of evidence
warrants a sanction. Similarly, in Smith v. Borg-Warner, there was no dispute that the
destruction of evidence was intentional rather than inadvertent. 2000 WL 1006619, at *9.
Even assuming that the negligent loss of evidence could support a spoliation claim, as
Sensient acknowledges, any sanction “must be proportionate to the circumstances surrounding
the failure to comply with discovery.” Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382 (7th
Cir. 1993); see also Roadway Exp., 447 U.S. at 764 (stating a court’s inherent powers “must be
exercised with restraint and discretion”). The remedies Sensient seeks would be too harsh under
the circumstances in this case, particularly where there is no hint that Plaintiffs willfully lost or
misplaced the blend sheets, and other evidence is available to Defendants to challenge Plaintiffs’
consequential damages calculations. Defendants likely will be able to present evidence at trial
that Plaintiffs had exclusive possession of the blend sheets and then misplaced or lost some of
them. And they can challenge the accuracy of Plaintiffs’ consequential-damages calculations
given the missing records as well as by pointing out information in the blend sheets that Sensient
claims shows that its colorants were not used in all of the defective seed treatments. For
example, on two blend sheets Sensient’s name is crossed off and replaced with “Uni,” which
could be inferred to mean Universal, another company that Olympus’s head blender, Don
Bradley, testified supplied red colorant to Olympus. In sum, the Court finds that Sensient’s
motion for remedy for Plaintiffs’ loss of evidence should be denied.
B. Plaintiffs’ Motion for Remedies for Spoliation of Evidence
Spectra retained a sample of each lot of colorant it made. All but one of the samples
were delivered to Sensient and then discarded before this litigation began, but after Sensient was
put on notice that there would be “claims.” Plaintiffs contend that this destruction is evidentiary
spoliation. They claim prejudice, arguing that without the samples, they cannot analyze the
ingredients; compare formulations; analyze characteristics such as stability, pH, viscosity, and
settling; or compare the samples to Sensient’s certificates of analysis for individual lots.
Plaintiffs request an inference that the destroyed evidence was unfavorable to Sensient and a
factual finding that the retained samples show the colorant lots they represent were defective and
damaged Plaintiffs’ seed treatments.
Defendants respond that from the beginning, Plaintiffs placed only one colorant at issue:
pearlescent red colorant sold in 250 gallon totes. Sensient contends that Plaintiffs have no
evidence that Sensient knew or should have known to preserve the blue and green colorants. It
may be that Sensient had no reason to know that any colorant other than the pearlescent red was
at issue. 4 Nonetheless, Sensient obtained from Spectra the retained samples of all colorants for
inspection and analysis.
Spectra maintains that it produced documents that contain the ingredients, formula,
production files, and characteristics of each lot of colorant Plaintiffs purchased from Sensient,
thus lessening any prejudice from the failure to preserve the samples. [See Filing No. 94 at 2
(ordering Spectra to produce formulas and related documents for Blue Pearl and Green Pearl).]
Plaintiffs’ assertion that without the samples they cannot “analyze the ingredients,” “compare
formulations,” or “analyze characteristics” of the colorants is not supported by any affidavit or
other evidence. However, the Court acknowledges that Plaintiffs suggest Spectra deviated from
the formulas and argue they could have analyzed the retained samples to determine whether the
formula ingredients were actually used in the production batches.
But even though Sensient discarded the retained samples (and there is no allegation that
this was accidental) with knowledge that Plaintiffs were considering making claims against it,
the imposition of sanctions is unwarranted. It would be impossible to allow an inference that the
spoliated evidence was unfavorable to Sensient without also raising the inference that the
evidence was unfavorable to Spectra too. Similarly, a factual finding that the retained samples
would show the colorant lots were defective and damaged the seed treatments would punish
Spectra as well as Sensient. But Spectra did not have possession of the retained samples when
they were discarded and Spectra was not responsible for their destruction. Spoliation requires
possession of the evidence, Cahoon, 734 N.E.2d at 545, and spoliation may be used to draw an
Spectra argues Sensient retained the samples for “a significant time” and Plaintiffs knew Sensient had
them, but Plaintiffs failed to request Sensient to preserve the samples. Thompson ex rel. Thompson v.
Owensby, 704 N.E.2d 134, 141 (Ind. Ct. App. 1998) (Staton, J., concurring), cited for the proposition that
the Plaintiffs had a duty to ask that Sensient preserve the samples, is inapplicable. That case involved the
defendant’s liability insurer’s duty to preserve evidence that it had obtained after litigation between the
parties had begun; Sensient was not a third-party in possession of evidence.
adverse inference only against “the party responsible.” Gribben, 824 N.E.2d at 351. Therefore,
there is no basis for drawing an adverse inference against Spectra or otherwise sanctioning
Spectra for spoliation.
Furthermore, the Court may exclude relevant evidence “if its probative value is
substantially outweighed by a danger of … unfair prejudice.” Fed. R. Evid. 403. Because
Spectra was not responsible for the destruction of the retained samples and an adverse inference
could not be drawn against Sensient without also allowing one against Spectra, allowing an
adverse inference against Sensient would be unduly prejudicial to Spectra. See Passmore v.
Barrett, Cause No. 2:13-cv-290, 2015 WL 2412709, at *3 (N.D. Ind. May 21, 2015) (denying
motion for adverse inference based on spoliation of evidence where it would be difficult to draw
an adverse inference against the responsible party without also drawing one against a party who
had no possession or control over the spoliated evidence). Therefore, the Court in its discretion
declines to allow an adverse inference or other sanction against Sensient.
Plaintiffs have not shown good cause to modify the deadline for amendments to the
pleadings, so their Motion to Modify the Amendment Deadline to File Fourth Amended
Complaint [Filing No. 131] is denied. Sensient has not shown that Plaintiffs intentionally
destroyed any blend sheets and the requested remedy would be too harsh under the
circumstances. Sensient’s Motion for Remedy for Plaintiffs’ Loss of Evidence [Filing No. 124]
is therefore denied. Although a closer question, Plaintiffs’ Motion for Remedies for Spoliation
of Evidence [Filing No. 132] is also denied, given the unavoidable prejudice to Spectra who
bears no fault in the destruction of the colorant samples.
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution to all counsel of record via CM/ECF.
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