In Re: JCC Environmental, Inc.
ORDER AND REASONS granting in part 11 Motion to Dismiss Case, or alternatively, Motion for More Definite Statement. The Trustee's claims for attorneys' fees under the Mississippi open account statute are DISMISSED. All other claims survive. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: JCC ENVIRONMENTAL, INC.
ORDER AND REASONS
Before the Court is Defendant’s Motion to Dismiss or, alternatively,
Motion for More Definite Statement (Doc. 11). For the following reasons, the
Motion is GRANTED IN PART.
This case is an adversary proceeding related to the bankruptcy case of
JCC Environmental, Inc. (the “Debtor”). The Trustee, acting for the estate,
commenced this adversary proceeding against defendant Hydrocarbon
Engineering Processing, Inc. (“HEP”). The Trustee alleges that from October
2010 to March 2013 the Debtor transferred recycled and non-recycled oil to
HEP, and in return HEP paid third parties, not the Debtor, for the oil it
received. He brings four claims associated with these transactions: (1) an
actual fraud claim pursuant to 11 U.S.C. § 548(1)(1)(A); (2) a constructive fraud
claim pursuant to 11 U.S.C. § 548(a)(1)(B); (3) a claim to recover the value of
transfers brought pursuant to 11 U.S.C. § 544(b); and (4) a claim to collect
outstanding debts brought pursuant to 11 U.S.C. § 542(b). HEP has filed the
instant Motion to Dismiss, challenging the sufficiency of the Complaint’s
allegations. The Trustee opposes this Motion.
I. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”3
The Court need not,
however, accept as true legal conclusions couched as factual allegations.4 To
be legally sufficient, a complaint must establish more than a “sheer possibility”
that the plaintiff’s claims are true.5
The complaint must contain enough
factual allegations to raise a reasonable expectation that discovery will reveal
evidence of each element of the plaintiff’s claim.6 If it is apparent from the face
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
2 Iqbal, 129 S.Ct. at 1949.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 129 S.Ct. at 1949–50.
6 Lormand, 565 F.3d at 255–57.
of the complaint that an insurmountable bar to relief exists, and the plaintiff
is not entitled to relief, the court must dismiss the claim.7
II. Motion for More Definite Statement
A district court will grant a motion for a more definite statement under
Rule 12(e) when the challenged pleading “is so vague or ambiguous that the
[moving] party cannot reasonably prepare a response.”8 The moving party
“must point out the defects complained above and the details desired.”9
“When evaluating a motion for a more definite statement, the Court
must assess the complaint in light of the minimal pleading requirements of
Rule 8.”10 Rule 8(a)(2) requires that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.”11 “Specific
facts are not necessary; the statement need only give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”12
In light of the liberal pleading standard set forth in Rule 8(a), Rule 12(e)
motions are disfavored.13 Motions for a more definite statement are generally
granted only when the complaint is “so excessively vague and ambiguous as to
be unintelligible and as to prejudice the defendant seriously in attempting to
Jones v. Bock, 549 U.S. 199, 215 (2007).
Fed. R. Civ. P. 12(e).
10 Babcock & Wilcox Co. v. McGriff, Siebels & Williams, Inc., 235 F.R.D. 632, 633 (E.D.
11 Fed. R. Civ. P. 8(a)(2).
12 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks and citations
13 JNP Enterprises, LLC v. Patterson Structural Moving and Shoring, LLC, No. 134684, 2014 WL 31650, at *1–2 (E.D. La. Jan. 3, 2014) (citing Mitchell v. E–Z Way Towers,
Inc., 269 F.2d 126, 132 (5th Cir. 1959); Who Dat Yat Chat, LLC v. Who Dat, Inc., No. 10–
1333, 10–2296, 2012 WL 2087439, at *6 (E.D. La. June 8, 2012)).
answer it.”14 This Court “has considerable discretion in deciding whether to
grant a Rule 12(e) motion.”15
LAW AND ANALYSIS
In this Motion, HEP argues (1) that the Trustee has failed to plead with
particularity a cause of action for actual fraud, (2) that the Trustee has failed
to state a claim for constructive fraud, (3) that the Trustee has failed to state
avoidance claims under 11 U.S.C. § 544(b) and state law, (4) that the Trustee
has failed to state a plausible claim under state open account laws, (5) that the
Court should dismiss the Complaint because the Trustee has not joined
unidentified insiders mentioned in the Complaint, and (6) that the Court
should order the Trustee to provide a more definite statement. The Court will
address these arguments in turn.
I. Count I: Actual Fraud
HEP moves this Court to dismiss the Trustee’s claim for failure to plead
fraud with the requisite specificity. HEP argues that the Complaint lacks the
required “who, what, when, where, and how” required by the Fifth Circuit and
that there are no allegations that support the presence of any badges of fraud
necessary to demonstrate intent.16 The Court disagrees.
Under 11 U.S.C. § 548(a)(1), to void a transfer and recover funds, the
receiver must show that the transfer: (1) is a transfer of the debtor’s interest
in property; (2) occurred within two years of the filing; and, (3) was made with
Phillips v. ABB Combustion Eng’g, Inc., No. 13–594, 2013 WL 3155224, at *2 (E.D.
La. June 19, 2013).
15 Murungi v. Texas Guaranteed, 646 F.Supp.2d 804, 811 (E.D. La. 2009).
16 “Actual intent to hinder, delay, or defraud creditors within 11 U.S.C.A. §
548(a)(1)(A) may be inferred from presence of badges of fraud.” Badges of fraud—Inferring
intent, 3B BANKR. SERVICE L. ED. § 34:168.
the actual intent to hinder, delay, or defraud.17 Here, the Complaint alleges
facts sufficient to support a claim under § 548(a)(1). The first two elements
are satisfied by the allegations that the Debtor “transferred approximately
836,170 gallons of recycled oil and, as of yet, an undetermined number of
gallons of nonrecycled oil” and that the transfer occurred “during the period of
October 11, 2010 through March 31, 2013,” where the petition was filed
October 11, 2013.18
The third element (“actual intent to hinder, delay, or defraud”) requires
more analysis. Because direct evidence of intent is usually unavailable, actual
intent may be inferred from circumstantial evidence and inferences. 19 The
Fifth Circuit has recognized six “badges of fraud” to help identify intent.20 The
badges of fraud include:
(1) the lack or inadequacy of consideration; (2) the family,
friendship or close associate relationship between the parties; (3)
the retention of possession, benefit or use of the property in
question; (4) the financial condition of the party sought to be
charged both before and after the transaction in question; (5) the
existence or cumulative effect of a pattern or series of transactions
or course of conduct after the incurring of debt, onset of financial
difficulties, or pendency or threat of suits by creditors; and (6) the
general chronology of the events and transactions under inquiry.21
However, it is not necessary to fit this analysis within the categories of
See Hays v. Jimmy Swaggart Ministries, 263 B.R. 203, 207–08 (M.D. La. 1999).
Complaint, at ¶ 7, 1.
19 In re Cipolla, 476 Fed. Appx. 301, 306 (5th Cir. 2012) (unpublished).
20 Matter of Wiggains, 848 F.3d 655, 661 (5th Cir. 2017); see also Soza v. Hill (In re
Soza), 542 F.3d 1060, 1067 (5th Cir. 2008).
21 In re Gulf Fleet Holdings, Inc., 491 B.R. 747, 767 (Bankr. W.D. La. 2013) (citing In
re Soza, 542 F.3d 1060, 1067 (5th Cir. 2008)).
22 Matter of Wiggains, 848 F.3d at 661.
The Trustee’s allegations must comply with Rule 9(b) and plead specific
facts showing the circumstances constituting fraud.23 Rule 9(b) requires a
party alleging fraud or mistake to “state with particularity the circumstances
constituting fraud or mistake.”24 “A dismissal for failure to plead fraud with
particularity as required by Rule 9(b) is a dismissal on the pleadings for failure
to state a claim under Rule 12(b)(6).”25 Fifth Circuit precedent “interprets Rule
9(b) strictly, requiring the plaintiff to ‘specify the statements contended to be
fraudulent, identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent.’ ”26 However, “the
time, place, contents, and identity standard is not a straitjacket for Rule 9(b).
Rather, the rule is context specific and flexible.”27 Additionally, fraud may be
pleaded on information and belief when “the facts relating to the alleged fraud
are peculiarly within the perpetrator’s knowledge.”28
Here, the Complaint alleges that “no value was received by the Debtor
for much of the oil transferred to [HEP]”29 and that “Debtor received little or
no value in exchange for [the oil],”30 indicating inadequate consideration. The
allegations that these transfers appear to have benefitted insiders of the
In re Gulf Fleet Holdings, Inc., 491 B.R. at 767 (citing In re Sharp Intern. Corp., 403
F.3d 43, 56, (2d Cir. 2005)); In re Charys Holding Co., Inc., 2010 WL 2774852, at *3–4 (Bankr.
D.Del. July 14, 2010).
24 Fed. R. Civ. P. 9(b).
25 Southland Sec. Corp. v. Inspire Ins. Solutions Inc., 365 F.3d 353, 361 (5th Cir. 2004).
26 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207
(5th Cir. 2009) (quoting Smallwood v. Pearl Brewing Co., 489 F.2d 579,605 (5th Cir. 1974)).
27 U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009); JNP
Enterprises, LLC v. Patterson Structural Moving and Shoring, LLC, no 13-4684, 2014 WL
31650, at *2 (E.D. La. Jan. 3, 2014).
28 U.S. exrel. Willard v. Humana Health Plan of Tex., Inc., et al., 336 F.3d 375, 385
(5th Cir. 2003).
29 Complaint, at ¶ 7.
30 Complaint, at ¶ 11.
Debtor31 and that “from January 2012 through March, 2013, [HEP] issued
checks payable directly to Justin Mayer, Melvin Oller, and C.J. Oller totaling
approximately $541,768.13” indicate a close associate relationship between the
parties. The Complaint further alleges the transfers “caused or increased the
insolvency of the Debtor” and that during the time of the transfers “and shortly
thereafter, the Debtor incurred substantial debts to creditors, including
without limitation American Advanced. These debts were incurred by the
Debtor despite that they were beyond the Debtor’s ability to pay such debts as
they matured.”32 These allegations speak to Debtor’s financial condition before
and after the transfer, and the existence or cumulative effect of the pattern or
series of transactions or course of conduct after the incurring of debt, onset of
financial difficulties, or pendency or threat of suits by creditors. Moreover, the
Complaint sets forth a general chronology of events by stating when the oil was
transferred (“during the period of October 11, 2010 through March 31, 2013”)
when HEP issued checks for the oil directly to persons other than the Debtor
(“January 2012 through March, 2013”).
The Complaint alleges facts that support several badges of fraud and the
facts are alleged with sufficient specificity. The Trustee has therefore met his
burden under Rule 9(b).
II. Count II: Constructive Fraud
HEP argues that the Trustee has failed to adequately plead constructive
fraud. Under 11 U.S.C. § 548(a)(1)(B), a plaintiff must plead that: “(1) the
debtor transferred an interest in property, (2) the transfer of that interest
occurred within two years prior to the filing of the bankruptcy petition, (3) the
Complaint, at ¶ 7, 1.
Complaint, at ¶ 18.
debtor was insolvent on the date of the transfer or became insolvent as a result
thereof, and (4) the debtor received less than reasonably equivalent value in
exchange for such transfer.”33
HEP takes issue with the last two elements.
As noted above, the
Complaint alleges that the transfers “caused or increased the insolvency of the
Debtor” and that during the time of the transfers “and shortly thereafter, the
Debtor incurred substantial debts to creditors, including without limitation
American Advanced. These debts were incurred by the Debtor despite that
they were beyond the Debtor’s ability to pay such debts as they matured.”34
Additionally, the exhibit attached to the Complaint lists the amounts HEP
allegedly owes to the Debtor for the oil transfers. Drawing all reasonable
inferences in the Trustee’s favor, these facts are sufficient to raise a reasonable
expectation that discovery will reveal evidence of each element of the Trustee’s
claim. Accordingly, this claim is plead with facts sufficient to survive a Motion
III. Count III: Avoidance under 544(b)
HEP argues that the Trustee has failed to adequately state a claim under
Section 544(b) and any state law. Pursuant to 11 U.S.C. § 544(b), a trustee
succeeds to the rights of the bankruptcy estate’s creditors to avoid transactions
under non-bankruptcy law.35
“The trustee’s successor rights arise under
federal law, but the extent of those rights depends entirely on applicable state
law.”36 The Complaint alleges that the transfers are avoidable under both
Louisiana and Mississippi state law. These claims are analyzed in turn.
A. Revocatory Action Under Louisiana Law
Tow v. Bulmahn, No. 15-3141, 2017 WL 44960, at *3 (E.D. La. Jan. 4, 2017).
Complaint, at ¶ 18.
35 Cotter v. Gwyn, No. 15-4823, 2016 WL 4479510, at *12 (E.D. La. Aug. 25, 2016).
36 In re Moore, 608 F.3d 253, 260 (5th Cir. 2010).
The Louisiana revocatory action found in Louisiana Civil Code article
2036 provides, “An obligee has a right to annul an act of the obligor, or the
result of a failure to act of the obligor, made or effected after the right of the
obligee arose, that causes or increases the obligor’s insolvency.”
HEP argues that the Trustee failed to submit a contemporaneous
balance sheet to prove that the Debtor was insolvent. To maintain a revocatory
action, a plaintiff must plead anteriority of the debt and insolvency of the
debtor.37 Here, the Trustee must plead facts that sufficiently allege that: (1)
the Debtor owed the investor/creditors before they made the transfers to HEP
and (2) the transfers caused or increased the insolvency.
The Trustee has met this burden. The Complaint clearly alleges that at
the time of the transfers to HEP,38 the Debtor incurred substantial debts to
creditors, including American Advanced, and that the Debtor received little or
no value for the transfers which “caused or increased the insolvency of the
Debtor”. Thus, the Trustee has plead the necessary elements to revoke the
transactions under Article 2036 and 11 U.S.C. § 544(b).
B. Fraudulent Transfer Claim under Mississippi Law
Mississippi’s Uniform Fraudulent Transfer Act (“UFTA”) provides that
“[a] transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor’s claim arose before or after the transfer was
made or the obligation was incurred, if the debtor made the transfer or
incurred the obligation with actual intent to hinder, delay or defraud any
creditor of the debtor.”39 The language of this statute closely tracks that of 11
La. Civ. Code art. 2036, cmt. (f); Hays, 263 B.R. at 213.
Traina v. Whitney Nat. Bank, 109 F.3d 244, 247 (5th Cir. 1997) (stating that “an
obligee must demonstrate the existence of some debt—liquidated or otherwise—at the time
of the offending transfer to maintain a revocatory action”) (emphasis added).
39 Miss. Code Ann. § 15–3–107.
U.S.C. § 548(a)(1). The Court has already determined that the Trustee has
pled facts sufficient to maintain a claim under 11 U.S.C. § 548(a)(1). For those
same reasons, the Trustee has met his burden here.
HEP also argues that some of the Trustee’s claims may be time-barred
under subsection (2)(n) of UFTA, which gives a-one year statute of limitations
for claims involving certain transfers made “to an insider for an antecedent
debt” where the debtor was insolvent at the time of the transfer and “the
insider had reasonable cause to believe that the debtor was insolvent.”40
However, the Trustee concedes that the Complaint does not set out to recover
transfers made by the Debtor to insiders. Accordingly, the one-year statute of
limitations does not apply.
The Trustee has met his burden of pleading facts sufficient to state
claims under either Louisiana Civil Code article 2036 or Mississippi Code §
15–3–107, and accordingly 11 U.S.C. § 544(b) as well.
IV. Count IV: 11 U.S.C. § 542(b)
The Trustee alternatively pleads a claim under 11 U.S.C. § 542(b),
which allows a trustee to collect outstanding debts owed to an estate. The
Trustee alleges, as an alternative source of relief, that the oil at issue was sold
to HEP on an open account under either Mississippi law or Louisiana law and
that HEP has never paid for the oil received. HEP argues that this claim is
insufficiently pled because (1) the Trustee has not provided facts sufficient to
show an open account claim under Mississippi law, (2) the Trustee cannot seek
attorneys’ fees under Mississippi’s open account statute, and (3) the open
account claims “may” be prescribed. The Court will separately address these
A. Sufficiency of Mississippi Open Account Claims
HEP argues that the Trustee has not alleged facts to show that there
existed a revolving credit agreement or a series of open-ended credit transfers.
Moreover, HEP argues that the Trustee failed to allege that there was a
predetermined price for the transferred oil. The Court disagrees and finds that
the allegations of the Complaint are sufficient to plead an action on an open
“‘Open account’ has been given various definitions, but it is generally
held to mean an account based on continuing transactions between the parties
which have not been closed or settled but are kept open in anticipation of
further transactions.”41 The Trustee alleges that the Debtor transferred to
HEP approximately 836,170 gallons of recycled oil and an undetermined
amount of non-recycled oil over a three-year period; that no value was received
for the oil; and the market value totaling, at minimum, $1,355,849.32. These
allegations are sufficient to identify the type of open-ended credit transactions
typical of open account arrangements.
B. Claim for Attorneys’ Fees Under Mississippi Law
HEP argues that the Trustee’s claim for attorneys’ fees under
Mississippi’s open account law is prohibited because the Trustee did not make
a pre-suit demand on HEP. The Trustee does not dispute this assertion.
Accordingly, the Trustee’s claim for attorneys’ fees under Mississippi’s open
account statute is dismissed.
Mauldin Co. v. Lee Tractor Co. of Miss., Inc., 920 So. 2d 513, 515 (Miss. App. 2006)
(quoting Westinghouse Credit Corp. v. Moore, McCalib, Inc., 361 So.2d 990, 992 (Miss. 1978)).
C. Whether the Open Account Claims are Time-barred
HEB next argues that the Trustee’s open account claims must be
dismissed because they “may be prescribed.”
Under both Louisiana and
Mississippi law, claims on open account are time-barred after three years.42
Under bankruptcy law, however:
If applicable nonbankruptcy law . . . fixes a period within
which the debtor may commence an action, and such period has
not expired before the date of the filing of the petition, the trustee
may commence such action only before the later of—
(1) the end of such period, including any suspension of such
period occurring on or after the commencement of the case; or
(2) two years after the order for relief.
The filing of a bankruptcy petition constitutes an order for relief in a
voluntary Chapter 7 case.43 Accordingly, the Trustee is granted an additional
two years within which to file a suit that is not time-barred when bankruptcy
proceedings are initiated. Here, all of the transfers of gas alleged in the
Complaint were made during the period of October 11, 2010 through March
31, 2013. The bankruptcy petition was filed on October 11, 2013, meaning that
all of the transactions at issue were not time barred at that time. As a result,
the Trustee had an additional two years from that date in which to institute
an action to collect on the alleged debt. This adversary proceeding was filed on
October 8, 2015, within the additional two-year period allowed by law.
Accordingly, the Trustee’s open account claims cannot be prescribed.
V. Failure to Join Unidentified Insiders
Federal Rule of Civil Procedure 12(b)(7) permits dismissal for failure to
join an indispensable party under Federal Rule of Civil Procedure 19. 44 It
La. Civ. Code art. 3494, Miss. Code Ann. § 15-1-29.
11 U.S.C. § 301.
44 HS Res., Inc. v. Wingate, 327 F.3d 432, 438 (5th Cir. 2003).
“allows for both the joinder of parties who should be present in order to have a
‘fair and complete resolution of the dispute,’ and for the dismissal of lawsuits
‘that should not proceed in the absence of parties that cannot be joined.’”45 Rule
19 sets out a two-step inquiry: whether a party should be added under the
requirements of Rule 19(a) and whether litigation can properly proceed
without the absent party under the requirements of Rule 19(b).46 A “Rule
12(b)(7) motion will not be granted because of a vague possibility that persons
who are not parties may have an interest in the action. In general, dismissal
is warranted only when the defect is serious and cannot be cured.”47 The
decision whether to dismiss a case for failure to join an indispensable party
first requires the court, in a highly practical, “fact-based endeavor,” to
determine whether the party meets the requirements of Federal Rule of Civil
Procedure 19(a).48 Under Rule 19(a)(1), the party must be joined if it is subject
to process, its joinder does not deprive the Court of subject matter jurisdiction,
(A) in the person’s absence, the court cannot accord complete
relief among existing parties; or (B) that person claims an interest
relating to the subject of the action and is so situated that
disposing of the action in the person’s absence may: (i) as a
practical matter impair or impede the person’s ability to protect
the interest; or (ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.49
Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 570 F.3d 219, 230–31 (5th
Cir. 2009), citing HS Res., Inc. v. Wingate, 327 F.3d at 438.
46 August v. Boyd Gaming Corp., 135 Fed. Appx. 731, 732 (5th Cir. June 22, 2005).
47 5A Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE § 1359 (2d ed.
48 Hood ex rel. Mississippi v. City of Memphis, Tenn., 570 F.3d 625, 628 (5th Cir. 2009).
49 Indian Harbor Ins. Co. v. KB Lone Star, Inc., H-11-CV-1846, 2012 WL 1038658, at
*1 (S.D. Tex. Mar. 27, 2012) (citing Hood, 570 F.3d at 628).
The party seeking the joinder bears the initial burden of demonstrating
that the person is necessary.50
Here, Defendant argues that the “unidentified insiders who allegedly
benefited from the transfers at issue are an active participant in the alleged
fraud and therefore ‘more than a key witness whose testimony would be of
inestimable value.’” Defendant asserts that these unidentified insiders must
be joined to “prevent this Court’s holding from trickling down to state court
and prejudicing their defense.”
However, the Complaint does not allege these facts and Defendant has
not explained how the absence of these insiders would prevent this Court from
according complete relief among existing parties.
Nor has Defendant
explained what interest these insiders claim that is related to the subject of
the action or how these insiders are so situated that disposing of the action
that their absence would: (i) as a practical matter impair or impede their ability
to protect that interest; or (ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent obligations
because of the interest.
Thus, Defendant has not demonstrated that the
unidentified insiders are necessary parties.
VI. Motion for More Definite Statement
HEP also, in the alternative to the Motion to Dismiss, moves this Court
to order the Trustee to amend his complaint pursuant to Rule 12(e).
A Rule 12(e) motion should only be granted when the complaint is “so
excessively vague and ambiguous as to be unintelligible and as to prejudice the
Hood, 570 F.3d at 628.
defendant seriously in attempting to answer it.”51 HEP argues unpersuasively
that the Complaint meets this standard because it fails to provide specific
factual content in accordance with Rules 8 and 9. Having already discussed
each claim in turn, and finding sufficient factual allegations to maintain each
claim, this motion is denied.
Defendant’s Motion to Dismiss or, alternatively, Motion for More
Definite Statement is GRANTED IN PART.
The Trustee’s claims for
attorneys’ fees under the Mississippi open account statute are DISMISSED.
All other claims survive.
New Orleans, Louisiana this 20th day of April, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
Phillips, 2013 WL 3155224.
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