United States of America v. American Commercial Lines, LLC et al
ORDER AND REASONS denying 146 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 9/16/2016. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
AMERICAN COMMERCIAL LINES,
LCC, ET AL
ORDER AND REASONS
Before the Court is American Commercial Lines, LLC’s (“ACL”
or “Defendant”) motion for partial summary judgment. Rec. Doc.
146. Plaintiff, the United States of America (“Plaintiff” or
“United States”), timely filed an opposition memorandum. Rec. Doc.
memorandum. Rec. Doc. 154. For the reasons discussed below,
IT IS ORDERED that the Motion is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an oil spill in the Mississippi River.
On July 23, 2008, a collision between the M/V TINTOMARA, an oceangoing tanker, and DM 932, a barge carrying thousands of barrels of
oil, resulted in an oil spill in the Mississippi River near New
Orleans, Louisiana. Rec. Doc. 98 at 4. ACL owned the barge and the
M/V MEL OLIVER, the tug towing DM 932 at the time of the accident.
Id. Following the spill, the Coast Guard deemed ACL a responsible
party under the Oil Pollution Act of 1990 (“OPA”) and therefore
liable for removal costs and damages resulting from the incident.
Id. at 6. Accordingly, ACL contracted with a number of oil spill
responders to clean up the spill, including Environmental Safety
Environmental Services, LLC (“USES”), and Oil Mop, LLC. (“OMI”).
Rec. Doc. 146-1 at 2.
The U.S. Coast Guard also closed twenty-
nine miles of the Lower Mississippi River following the spill.
Rec. Doc. 1 at 6. It re-opened the river for navigation on July
30, 2008. Id.
Following the clean-up, ACL appointed Worley Catastrophe
Response (“Worley”) as its designated agent to receive claims, and
Maritime Alliance Group Inc. (“MAGI”) was charged with auditing
the invoices. Rec. Doc. 146-1 at 2. The spill responders then
invoiced ACL for their services, but ACL disputed some of the
claims and failed to pay or settle all outstanding claims within
the ninety-day time period mandated by the OPA. Rec. Doc. 98 at 6.
According to ACL, it made the following payments to the relevant
ACL paid ES&H approximately $10.6 million and withheld
payment of around $3.9 million of the amount invoiced.
ACL paid USES approximately $13.4 million and withheld
payment of around $6.3 million of the amount invoiced.
ACL paid OMI approximately $19.1 million and withheld
payment of around $6.5 million of the amount invoiced.1
Because not all outstanding claims were paid within the 90-day
period, the spill responders submitted claims for uncompensated
removal costs to the Oil Spill Liability Trust Fund (“the Fund”)
pursuant to the OPA. Id. at 6. ACL maintains that the Fund
improperly paid claims submitted by the aforementioned responders.
The United States then filed suit against ACL under the OPA
to recover the Fund’s payments to the responders. See Rec. Doc. 1.
In turn, ACL filed a Third Party Complaint against ES&H and USES,
alleging that all sums sought by the United States are actually
owed by the spill responders due to their failure to properly
present their claims to ACL. See Rec. Doc. 11. The United States,
ES&H, and USES all filed separate motions to dismiss the Third
Party Complaint. Rec. Docs. 31, 32, and 35. Thereafter, this Court
granted the motions and dismissed the Third Party Complaint,
finding that the OPA preempts the general maritime claims which
ACL sought to assert. Rec. Doc. 86. ACL appealed, and the United
States Court of Appeals for the Fifth Circuit issued a Judgment as
mandate on August 7, 2014. Rec. Doc. 98. The Fifth Circuit affirmed
this Court’s dismissal of the Third Party Complaint and held that
“ACL does not have a cause of action against the spill responders
See Rec. Doc. 146-1 at 4-5.
who exercised their statutory right to file claims with the Fund
after ACL failed to timely pay their claims.” Id. at 8.
Supreme Court of the United States then denied ACL’s petition for
a writ of certiorari. Rec. Doc. 128.
In the meantime, this Court granted the United States’ motion
for partial summary judgment, declaring: (1) ACL a “responsible
party” for the purposes of liability for removal costs and damages
under the OPA; (2) that ACL is not entitled to invoke the complete
sole-fault third-party defense under the OPA; and (3) that ACL is
not entitled to invoke the limitation of liability defense under
the OPA. Rec. Doc. 125. Now, ACL has filed its own motion for
partial summary judgment.
THE PARTIES’ CONTENTIONS
ACL’s motion seeks dismissal of those claims never presented
to ACL, those claims not properly presented to ACL, those claims
where damages were not caused by the oil spill, as well as OMI’s
claims that were allegedly filed in violation of a forum selection
clause. Rec. Doc. 146 at 1. First, ACL argues that the Coast Guard
Regulations govern the presentment of claims to a responsible
party, requiring: “a general description of the nature and extent
of the impact of the oil spill and the associated damages, a list
of the damages with a ‘sum certain’ attributed to each type of
damage listed, and evidence to support this claim.”. Rec. Doc.
146-1 at 9. ACL further avers that the holding of Nguyen v.
American Commercial Lines, L.L.C., 805 F.3d 134 (5th Cir. 2015),
is not applicable in this instance because it only applies when
“the third party claimant chooses to file a lawsuit against the
Based upon this proposed standard, ACL contends that the Fund
paid claims filed by OMI and ES&H that were not properly presented,
or not presented at all, to ACL. Rec. Doc. 146-1 at 10. ACL further
argues that the United States should not be able to collect for
payments made on claims that were substantially different from
those claims submitted to ACL or claims based upon documentation
never submitted to ACL. Id. at 11-13. Finally, ACL challenges all
payments made where the claimants did not establish that the loss
was caused by the oil spill as well as all payments made to OMI
based upon a forum selection clause. Id. at 14-16.
The United States first argues that ACL misconstrues the OPA’s
presentment requirement. Rec. Doc. 151 at 3. The Government avers
that Nguyen is controlling in this circuit, and that it clearly
rejects ACL’s contention that the Coast Guard Regulations govern
Giving little heed to ACL’s contention that Nguyen only applies
when a third party files a lawsuit rather than submits a claim to
the Fund, the United States argues that such a strained reading of
Nguyen contradicts the applicable statute’s basic language. Id. at
5. The United States further maintains that none of ACL’s specific
arguments about presentment are meritorious either due to lack of
factual or legal support. Id. at 7-11. Finally, the Government
contends that all lost income damages paid from the Fund were due
to the oil spill and that the venue provision in ACL’s contract
with OMI did not preclude OMI from bringing a claim to the fund.
Id. at 11-22. Accordingly, the United States urges this Court to
deny the motion.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). See also TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the
evidence would allow a reasonable jury to return a verdict for the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The movant must point to “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and present other evidence to
establish a genuine issue.
Matsushita Elec. Indus. Co. V. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). However, “where the nonmovant bears the burden of proof at trial, the movant may merely
point to an absence of evidence, thus shifting to the non-movant
the burden of demonstrating by competent summary judgment proof
that there is an issue of material fact warranting trial.” Lindsey
v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994).
Conclusory rebuttals of the pleadings are insufficient to avoid
Travelers Ins. Co. v. Liljeberg Enter., Inc.,
7 F.3d 1203, 1207 (5th Cir. 1993). This Court will first address
the appropriate presentment standard under the OPA and ACL’s
arguments for dismissal of certain claims due to the claimants’
alleged failure to properly present them.
a. The OPA’s Presentment Requirement
“Congress passed the OPA, 33 U.S.C. § 2701 et seq., after the
Exxon Valdez oil spill ‘to streamline federal law so as to provide
quick and efficient cleanup of oil spills, compensate victims of
such spills, and internalize the costs of spills within the
petroleum industry.’” Nguyen, 805 F.3d at 138 (quoting Rice v.
Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)). To achieve
“responsible parties who must pay for oil spill cleanup in the
L.L.C., 759 F.3d 420, 422 (5th Cir. 2014) (citing 33 U.S.C. §
2702(a)) (internal quotation marks and alterations omitted). All
claims for removal costs or damages arising from the oil spill
must first be presented to the responsible party. 33 U.S.C. §
2713(a); Nguyen, 805 F.3d at 139. If the responsible party then
denies liability or does not settle the claim within ninety (90)
days of presentment, the claimant may commence an action in court
against the responsible party or file the claim against the Fund—
“a public trust fund established by the OPA to compensate those
harmed by oil spills.” Id. If the claimant chooses to file a claim
against the Fund, “the government is subrogated to the claimant’s
rights under the OPA and may assert those rights in litigation to
recoup any payments made on claims.” Id. at 139 n. 4 (citing 33
U.S.C. § 2715). The United States’ assertion of those rights forms
the basis of the controversy here.
ACL maintains that a number of the United States’ claims must
be dismissed because the oil spill responders did not properly
present their claims in the first instance. The Fifth Circuit
addressed the contours of the presentment requirement in some depth
in Nguyen, a case arising out of the exact same oil spill filed by
a number of commercial fisherman and others affected by the spill.
Id. at 136. In contrast to this case, the Nguyen plaintiffs
proceeded directly to court after their claims were not timely
settled instead of filing their claims with the Fund as did the
oil spill responders in this case. Id. at 136-37. In Nguyen, the
Fifth Circuit patently rejected a number of the arguments re-urged
by ACL here concerning presentment procedures.
Deeming it a misreading of the OPA, the Nguyen court rejected
ACL’s argument that presentment of a claim is only proper if it
includes all information and supporting documentation requested by
the responsible party. 805 F.3d at 140. The court specifically
found ACL’S reading of 33 U.S.C. § 2713 erroneous because it
“conflat[ed] the requirements for filing claims against the Fund
with the requirements for presenting claims to a responsible
requirements for filing a claim against the Fund found in the Coast
Guard regulations, 33 C.F.R. § 136.105, do not apply to claims
presented to the responsible party. Id. at 141. It is indisputably
requirements for filing claims with the Fund are not identical to
the requirements for filing a claim with the responsible party
under the OPA.
As the Fifth Circuit explained, the fact that a
requirements cannot differ for presentment to the responsible
party versus presentment to the Fund:
The OPA defines a claim as ‘a request, made in
writing, for a sum certain, for compensation
for damages or removal costs resulting from an
incident,’ and this definition applies to all
claims under the OPA. 33 U.S.C. § 2701(3).
While § 2713(e) allows the President to
promulgate regulations that expand what
claimants must submit when filing their claims
‘against the Fund,’ it does not authorize the
President to alter or expand the definition of
a ‘claim’ under the statute generally. Thus,
the requirements for filing a claim against
the Fund in 33 C.F.R. § 136.105 do not apply
to claims presented to the responsible party.
Id. (emphasis added).
ACL’s argument concerning the inapplicability of Nguyen in
this context is clearly erroneous. ACL maintains that Nguyen only
applies to instances where the claimants choose to directly file
suit instead of filing claims with the Fund. In support, ACL claims
that the difference between the two situations is that when a
claimant files its claim with the Fund, ACL will not have access
to discovery as it would if the claimant chose to file suit
instead. Rec. Doc. 126-1 at 9. First, the Nguyen court made no
responsible parties generally without any differences based upon
the claimants’ decisions post-presentment. See Nguyen, 805 F.3d at
141. (“[T]his definition applies to all claims under the OPA.”).
Second, ACL’s argument is logically unsound. Even when claimants
choose to file claims with the Fund, the responsible party will
still have access to discovery when the government is subrogated
to the rights of the claimants and files suit to recover the
amounts paid by the Fund. Consequently, this Court finds Nguyen
controlling and ACL’s attempt to distinguish it unconvincing. We
therefore reject ACL’s general arguments: (1) that the Coast Guard
regulations concerning the requirements for presentment govern
presentment to responsible parties; and (2) the related argument
responsible party are the same as those for claims made to the
“substantially different” invoices and payments made on the basis
of documentation not presented to ACL are rejected as well, see
Rec. Doc. 146-1 at 11-13, because the fact that supplemental
documentation submitted to the Fund was not sent to ACL or Worley
does not, in and of itself, render presentment improper.2 The Court
presentment of specific claims.
1. OMI Invoice N0901-239
ACL complains that OMI never presented Worley, its claim
administrator, with invoice N0901-239, which sought recovery for
invoices. Rec. Doc. 146-1 at 10. Because it was allegedly never
presented to Worley, ACL maintains that the Fund improperly paid
Furthermore, the supporting evidence submitted by ACL does not adequately
demonstrate that any claims were so substantially different to render
presentment inadequate. Forensic accountant John Kim claims that substantial
differences exist citing to Exhibit A to his declaration as support. Rec. Doc.
146-3 at 66. However, Exhibit A only displays details of the invoices submitted
to the Fund, not those submitted to Worley. Id. at 69. Accordingly, the Court
cannot confirm that the invoices are substantially different as Kim contends.
Moreover, ACL does not submit a standard for determining when a difference is
so substantial so as to render presentment inadequate.
the claim and thus the Government’s claim for reimbursement of
those funds should be dismissed.3 Id. The United States points out
that it is undisputed that OMI presented the claim to ACL, even if
Government responds that ACL provides no legal support for the
argument that a claim must be submitted to a third-party claim
Finally, the United States argues that ACL has presented no
evidence to support the assertion that Worley never received the
claim, making summary judgment inappropriate. Id. In its reply
memorandum, ACL concedes that it received the invoice but argues
that OMI was required to send the invoice to Worley pursuant to
the notice that was approved by the Fund and issued under 33 U.S.C.
§ 2714(b). Rec. Doc. 154 at 2.
The OPA specifically states that “all claims for removal costs
. . . shall be presented to the responsible party.” 33 U.S.C. §
2713(a). However, the OPA also requires the responsible party to
issue an advertisement setting forth the procedures by which a
claim may be presented. 33 U.S.C. § 2714(b). ACL issued such notice
telling claimants to submit claims to its third party administrator
ACL also includes several conclusory statements suggesting that a Fund employee
improperly solicited the claim and that the claim did not actually seek payment
for clean-up services. However, ACL includes no factual or legal support for
these arguments, and thus they are not sufficiently briefed to warrant
consideration. See Bowman v. Slidell City, No. 13-2636, 2014 WL 3542118, at *4
n. 20 (E.D. La. July 17, 2014).
Worley, and thus it maintains that all claimants were required to
present claims in the manner. While ACL makes a colorable argument,
we ultimately find it unpersuasive.
The law supports a finding that presentment to the responsible
party is sufficient even when the responsible party designates a
third party administrator. First, the OPA states that all claims
responsible party. 33 U.S.C. § 2713(a). Second, while the OPA does
procedures is permissive: “such party or guarantor shall advertise
presented.” 33 U.S.C. § 2714(b)(1). Therefore, even though a third
compliance with such statutory procedures was expressly permissive
rather than required.
mandates presentment to the responsible party; section 2714(b)(1)
mandates advertising the claims process and how claims “may be
presented;” neither section excludes presentment directly to the
responsible party, nor does the latter section override the mandate
of the former. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(“It is ‘a cardinal principle of statutory construction’ that ‘a
statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.’”); White v. Black, 190 F.3d 366, 368 (5th
Cir. 1999) (“The canons of statutory construction dictate that
when construing a statute, the courts should give words their
ordinary meaning and should not render meaningless the language of
the statute.”). Nevertheless, even in the event that ACL is correct
advertisement (and that presentment to the responsible party is
insufficient when a third party administrator has been appointed),
ACL’s argument still fails because it presents absolutely no
evidence to support its conclusory assertion that Worley never
received invoice N0901-239.
2. ES&H’s Revised Invoices
ACL also challenges the Fund’s payment of invoices submitted
by ES&H charging for services at the original rates set forth in
its published rate schedule without the agreed rate reductions.
Rec. Doc. 146-1 at 11. ACL maintains that ES&H revised the rates
in its invoices after presentment and before submitting them to
the Fund, meaning the invoices submitted to the Fund were never
properly presented and thus the Fund should not have paid ES&H the
$124,519.74 requested therein. Id. The Government responds that
adequately respond. Rec. Doc. 151 at 8. In particular, the United
States contends that the argument is insufficient because ACL does
not identify any specific invoices, claims, or payments that it
challenges. Id. Further, ACL provides no factual support for any
of its contentions in the two-sentence argument. Id. In reply, ACL
argues that Exhibit B to the Lane Declaration shows how much was
actually paid and supports its argument. Rec. Doc. 154 at 2.
Further, ACL maintains that the summary spreadsheet is admissible
under Federal Rule of Evidence 1006. Id. at 3.
The spreadsheet cited by ACL lacks sufficient evidence to
support summary judgment. While ACL is correct that it does have
a “Rate Reduction Agreement” line item reflecting a total of
$124,519.74 deriving from nine separate invoices, the line item
and spreadsheet do not indicate that particular invoices were never
presented to ACL and/or Worley or that the amounts sought were
altered at any time. Rec. Doc. 146-3 at 29. In fact, the header to
the chart containing that line items reads “Amounts reimbursed by
the NPFC accepting the original documentation that was reviewed
and denied by ACL.” This header tends to indicate that all of those
invoices were presented to ACL and subsequently denied, thus
contradicting ACL’s position. Id. Accordingly, genuine issues of
fact remain concerning presentment of the subject ES&H invoices.
b. Proof of Causation
ACL argues that the United States should be denied recovery
for any payment made by the Fund to a claimant that failed to
establish that the loss was caused by the oil spill. Rec. Doc.
146-1 at 14. More specifically, ACL maintains that the Government
should not be able to recover for payments made for losses incurred
solely as a result of the Coast Guard’s closing of the Mississippi
River. Id. at 15. ACL contends that any all such claims should
have been denied by the Fund unless a claimant showed that its
vessel, or the berth where it was scheduled to dock, were oiled as
a result of the spill. Id. The United States counters that a
claimant may recover lost profits which were due to the injury,
destruction, or loss of the natural resource of the Mississippi
river that resulted from the oil discharge. Rec. Doc. 151 at 16.
Under the OPA, each responsible party is liable for damages,
including “[d]amages equal to the loss of profits or impairment of
earning capacity due to the injury, destruction, or loss of real
property, personal property, or natural resources, which shall be
Accordingly, courts in this circuit have refused to make oiling of
physical property a prerequisite for recovery of damages under the
resulting from the closure or loss of use of a natural resource
such as a river. See In re Settoon Towing LLC, No. 07-1263, 2009
WL 4730969, at *4 (E.D. La. Dec. 4, 2009) (finding a disputed issue
of fact as to whether closure of waterway after oil spill caused
the alleged economic losses);
Dunham-Price Group, LLC v. Citgo
Petroleum Corp., No. 07-1019, 2010 WL 1285446, at *1-2 (W.D. La.
Mar. 31, 2010) (finding a triable issue of fact as to causation of
resulting from the Coast Guard’s closing of the Calcasieu River
following an oil spill).
ACL’s arguments to the contrary lack
ACL relies primarily on two cases to support its position
that claimants should not be able to recover damages that resulted
from the closure of the river rather than physical oiling of
property: In re Taira Lynn Marine Ltd. No. 5, L.L.C., 444 F.3d
371, 383 (5th Cir. 2006) (hereinafter “Taira Lynn”), and In re Oil
Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on
April 20, 2010, MDL No. 2179, 2016 WL 915257 (E.D. La. Mar. 10,
2016) (hereinafter “Deepwater Horizon”). Neither case adequately
supports ACL’s position. First, in Taira Lynn, the Fifth Circuit
found that none of the claimants raised an issue of fact as to
whether the release of a gaseous mixture into the air caused the
property damage alleged. 444 F.3d at 383. However, Taira Lynn is
an inapt analogy to the case at hand because there, while the
police evacuated the area and, in doing so, allegedly harmed
certain businesses in the vicinity, there was no alleged loss of
profits resulting from damage to a natural resource as exists here.
Id. See also Deepwater Horizon, 2016 WL 915257 at *7 (noting that
the gaseous release in Taira Lynn caused no direct damage to
property or resources). Furthermore, Deepwater Horizon does not
stand for the proposition ACL suggests. There, the court noted
that the facts were distinguishable from river shutdown cases such
as Dunham-Price where the shutdown was a result of the oil spill,
because the moratorium on drilling addressed the risk of future
explosion at the Deepwater Horizon rig. Deepwater Horizon, 2016 WL
915257 at *6-7 (“Significantly, and unlike the Moratorium, the
river closure [in Dunham-Price] was part of the effort to contain
and clean up the spill from the defendant’s facility.”). Therefore,
Deepwater Horizon aligns with and does not reject the holding of
cases such as Dunham-Price.
We find this case most similar to Dunham-Price where the Coast
Guard closed the Calcasieu River in response to an oil spill, and
the court found that genuine issues of fact precluded summary
judgment as to whether the oil spill caused an upriver concrete
facility’s business interruption losses arising out of the river
closure. See Dunham-Price, 2010 WL 1285446. Accordingly, we reject
ACL’s conclusion that any damages resulting primarily from the
closure of the Mississippi River are improper under the OPA,
because the closure of the river was a response to and a direct
result of the oil spill.
c. The OMI Forum Selection Clause
Finally, ACL claims that the Court should deny the Government
recovery on all payments made to OMI because of a forum selection
entered into between ACL and OMI. Rec. Doc. 146-1 at 15. The
relevant portion of that clause states:
In the event of a dispute over the meaning,
Agreement, it shall be construed fairly and
reasonably and neither more strongly for nor
against either Party. The Parties agree and
stipulate that the exclusive venue for any
dispute arising out of or in connection with
this Agreement shall be the United States
District Court for the Eastern District of
Louisiana located in New Orleans, Louisiana.
Rec. Doc. 146-3 at 9. ACL claims that OMI violated this clause by
filing its claims with the Fund instead of directly filing suit in
this court, and thus the United States should not be reimbursed
for its payments to OMI. Rec. Doc. 146-1 at 15-16. The United
States’ primary argument in response is that the term venue as
used in the contract refers to the “locality of suit, that is,
with the question of which court, or courts . . . may hear the
specific suit in question.” Rec. Doc. 151 at 22 (citing BLACK’S LAW
DICTIONARY 1557 (6th ed. 1990)). Because the Fund is a federal agency
and not a court, the government maintains that the provision was
not violated when OMI filed its claim with the Fund. Id. at 23.
Again, ACL’s position lacks merit.
First, OMI’s submission of its claims to the Fund did not
resolve, or even purport to address the merits of, the dispute
between ACL and OMI. Rather, the Fund made its own evaluation of
OMI’s claims and, for all intents and purposes, purchased those
claims from OMI. In fact, the OPA explicitly states that “[a]ny
person, including the Fund, who pays compensation pursuant to this
subrogated to all rights, claims, and causes of action that the
claimant has under any other law.” 33 U.S.C. § 2715. “In essence,
subrogation is an assignment.” Hamilton v. United Healthcare of
substitution of one person in the place of another with reference
to a lawful claim.” Id. (citing BLACK’S LAW DICTIONARY 1427 (6th ed.
1990)) (internal alterations omitted). OMI’s assignment of its
rights to the Fund cannot be construed as a violation of the forum
selection clause because OMI did not file suit or seek to have its
Finally, when the United States did file suit, it did so in the
Eastern District if Louisiana. The dispute is being adjudicated in
that forum as required by the MSA. ACL’s argument for summary
judgment is therefore denied.
For the reasons outlined above,
IT IS ORDERED that ACL’s motion for partial summary judgment
New Orleans, Louisiana, this 16th day of September, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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