Exobox Technologies Corp. v. Tsambis
Filing
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ORDER that 166 Motion to Extend Time and 168 Motion for Service by Publication are GRANTED. Proof of service due by 9/22/2015. Signed by Magistrate Judge Cam Ferenbach on 7/23/15. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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EXOBOX TECHNOLOGIES CORP.,
Plaintiff,
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vs.
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2:14–cv–00501–RFB–VCF
ZACHARY TSAMBIS, et al.,
ORDER
EXTENDING TIME TO SERVE SUMMONS AND
COMPLAINT AND ALLOWING SERVICE BY
PUBLICATION (#166 AND #168)
Defendant.
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This matter involves Exobox Technologies Corp. action against Defendants for alleged
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intentional interference with prospective economic advantage and civil conspiracy. (See Amended
Compl. (#52 at 2 1). Before the court are: (1) Plaintiff’s motion to Extend Time to Serve Summons and
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Complaint (#166) and (2) Plaintiff’s Motion to Allow Service by Publication (#168). To date, no
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oppositions have been filed by those defendants that have already appeared in this matter. This court has
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twice previously granted motions to extend time to serve summonses and amended complaint. (See #143
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and #160). The period in which to serve Defendants expired on July 6, 2015. (#160). Plaintiff’s motion
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was filed prior to the expiration. As discussed in more detail below, Plaintiff’s motions are granted.
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DISCUSSION
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Plaintiff’s motions present two questions: (1) whether Plaintiff may have additional time to serve
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Defendants James Patrick Kerr (“Kerr”), Vicki Davis (“Davis”), and Stephen Thornton (“Thornton”)
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Parenthetical citations refer to the court’s docket.
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(collectively referred to as “Defendants”) personally and (2) whether Plaintiff may serve Defendants by
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publication. Both questions are addressed below.
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A.
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Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams, 473
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F.3d 1038, 1041 (9th Cir. 2003). The Supreme Court has stated that the 120–day time period for service
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contained in Rule 4(m) “operates not as an outer limit subject to reduction, but as an irreducible
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allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). “On its face, Rule 4(m) does not tie
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the hands of the district court after the 120–day period has expired. Rather, Rule 4(m) explicitly permits
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a district court to grant an extension of time to serve the complaint after that 120–day period.” Mann v.
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American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). The Advisory Committee Notes to Rule 4(m)
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state that the rule “explicitly provides that the court shall allow additional time if there is good cause for
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the plaintiff’s failure to effect service in the prescribed 120 days, and authorizes the court to relieve a
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plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown.” See
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FED. R. CIV. P. 4(m), Advisory Committee Notes, 1993 Amendments.
Generally, “good cause” is equated with diligence. See WRIGHT & MILLER, FEDERAL PRACTICE
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AND
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simple inadvertence, mistake of counsel, or ignorance of the rules. See National Union Fire Ins. Co. v.
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Monroe, No. 10–cv–0385, 2011 WL 383807, at *1 (D. Nev. Feb. 2, 2011). “At a minimum, good cause
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means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be
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served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and
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Plaintiff’s Motion for Additional Time to Serve Defendants is Granted
PROCEDURE: CIVIL 3D § 1337. In the Ninth Circuit, a showing of good cause requires more than
(c) the plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette,
923 F.2d 754, 756 (9th Cir.1991)
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Here, the Plaintiff has satisfied this standard. Plaintiff has diligently attempted to serve
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Defendant Kerr on March 21, 25, April 6, and April 16, 2015 at Kerr’s last known address - 16418 La
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Avenida Drive, Houston, Texas. (See #168 at 3:25-28). The process server telephoned Kerr on March
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21, 2015. Plaintiff believes Kerr is actively avoiding service. In one instance, the process server waited
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for Kerr at his residence, but when Kerr saw the process server, he rapidly backed out of his driveway in
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his car. (See id. at 4:1-4).
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Plaintiff has diligently attempted to serve Defendant Davis on March 12, 18, 21, April 6, and
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April 9, 2015 at Davis’ last known address - 1603 Emerald Lake Court, Houston, Texas. (See id. at 4:8-
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13). The process server telephoned and left messages on Davis’ home phone.
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Plaintiff has diligently attempted to serve Defendant Thornton on March 11, 12, 14, April 6, 9,
and April 16, 2015 at Thornton’s last known address - 714 Heathgate Drive, Houston, Texas. (See id. at
4:19-27). Plaintiff believes Thornton is actively avoiding service.
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This constitutes “diligence.” Accordingly, the court grants Plaintiff an additional sixty days, up
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to and including September 22, 2015 to effectuate service of the Complaint and Summons on
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Defendants.
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B.
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Federal Rules of Civil Procedure do not expressly permit service by publication. Rule 4(e)(1),
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however, permits a plaintiff to serve a defendant “following state law for serving a summons in an
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action brought in courts of general jurisdiction in the state where the district court is located or where
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service is made.” FED. R. CIV. P. 4(e)(1).
Plaintiff’s Motion to Serve Defendants by Publication is Granted
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In Nevada, Rule 4 of the Nevada Rules of Civil Procedure (“NRCP”) governs service of parties
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under state law. Parties are required to personally serve summons and the complaint upon defendants;
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however, when personal service proves impossible, Rule 4(e)(1)(i) provides that a party may move for
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service by publication when the opposing party “resides out of the state, or has departed from the state,
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or cannot, after due diligence be found within the state, or by concealment seeks to avoid the service of
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summons.” Id.
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“A party seeking service by publication must seek leave of court by filing an affidavit
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demonstrating its due diligence in attempting to personally serve the defendant. There are several key
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factors Nevada courts look to in evaluating a party’s due diligence in effecting service.” Id. Nevada
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courts principally consider the number of attempts made by a plaintiff to serve a defendant at his or her
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residence and other methods of locating defendants, such as consulting public directories and family
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members. Id.; citing Price v. Dunn, 106 Nev. 100, 787 P.2d 785, 786–7 (Nev. 1990), rev’d on other
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grounds, NC–DSH, Inc. v. Garner, 125 Nev. 647, 651 n. 3, 218 P.3d 853 (2009); Abreu v. Gilmer, 115
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Nev. 308, 985 P.2d 746, 747 (Nev. 1999); McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240, 1241 (Nev.
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1994).
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In Price, the Nevada Supreme Court found service by publication was not warranted, stating
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“where other reasonable methods exist for locating the whereabouts of a defendant, plaintiff should
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exercise those methods.” 787 P.2d at 786–7. There, the plaintiff contacted the defendant’s stepmother,
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and upon hearing that the defendant lived out of state, moved for service by publication. Id. at 105, 787
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P.2d 785. The Price court held that, “although [plaintiff’s] affidavit technically complies with NRCP
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4(e)(1)(i), her actual efforts, as a matter of law, fall short of the due diligence requirement to the extent
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of depriving [defendant] of his fundamental right to due process.” Id.
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In contrast, in Abreu, the Nevada Supreme Court determined that the plaintiff exercised due
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diligence in attempting service because it made three attempts at the defendant’s possible address and
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also consulted telephone company directories. See 115 Nev. at 311.
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NRCP 4(e)(1)(iii) also requires that in addition to in-state publication, “where the present
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residence of the defendant is unknown the order may also direct that publication be made in a newspaper
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published outside the State of Nevada.” Id. In cases “where the residence of a nonresident or absent
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defendant is known, the court or judge shall also direct a copy of the summons and complaint to be
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deposited in the post office.” Id.
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Here, Plaintiff has met the threshold requirement of submitting an “affidavit.” See NEV. R. CIV.
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P. 4(e)(1)(i). Although, Plaintiff has filed a “declaration,” Nevada Revised Statute 53.045 allows a
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signed declaration under penalty of perjury in lieu of an affidavit. (See Buckwalter v. Dist. Ct.,126 Nev.
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Adv. Op. 21, 234 P.3d 920, 922 (2010)). (“Interpreting the two statutes so as to give meaning to both,
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we conclude that a declaration that complies with NRS 53.045 can fulfill NRS 41A.071's affidavit
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requirement.”).
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Additionally, Plaintiff has at least met, if not exceeded the efforts displayed by the plaintiffs in
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Abreu. As mentioned above, the process server has diligently attempted to serve each of the Defendants
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multiple times at their last known address in Texas. The court finds that this is sufficient to permit
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service of process by publication under Nevada law. Accordingly, the court grants the Plaintiff’s motion
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to serve Defendants by publication.
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ACCORDINGLY, and for good cause shown,
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IT IS ORDERED that Plaintiff Exobox Technologies Corp.’s Motion to Extend Time (#166 and
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#168) is GRANTED. Plaintiff has an additional 60 days, up to and including September 22, 2015 to
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perfect service on James Patrick Kerr, Vicki Davis, and Stephen Thornton.
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IT IS FURTHER ORDERED that Plaintiff Exobox Technologies Corp.’s motion to serve James
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Patrick Kerr, Vicki Davis, and Stephen Thornton by publication (#166 and #168) is GRANTED.
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Plaintiff has an additional 60 days, up to and including September 22, 2015 to complete the service of
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the Summons and Amended Complaint by publication.
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IT IS FURTHER ORDERED that service of the Summons and Amended Complaint in this
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action be made upon James Patrick Kerr (“Kerr”) by publication of the summons in a newspaper of
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general circulation in the area of Kerr’s last known address (Houston, Texas) and in the Las Vegas
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Review-Journal, a newspaper of general circulation in Las Vegas, Nevada, where this matter is currently
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pending. Said publications shall run once per week for four consecutive weeks. The service of summons
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and complaint shall be deemed complete upon the expiration of four weeks from the date of the first
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publication.
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IT IS FURTHER ORDERED that Plaintiff shall serve a copy of the Amended Complaint and
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Summons to Kerr via U.S. Mail to the last known address for Kerr as follows: 16418 La Avenida Drive,
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Houston, Texas 77062.
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IT IS FURTHER ORDERED that service of the Summons and Amended Complaint in this
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action may be made upon Vick Davis (“Davis”) by publication of the summons in a newspaper of
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general circulation in the area of Davis’ last known address (Houston, Texas) and in the Las Vegas
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Review-Journal, a newspaper of general circulation in Las Vegas, Nevada, where this matter is currently
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pending. Said publications shall run once per week for four consecutive weeks. The service of summons
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and complaint shall be deemed complete upon the expiration of four weeks from the date of the first
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publication.
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IT IS FURTHER ORDERED that Plaintiff shall serve a copy of the Amended Complaint and
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Summons to Davis via U.S. Mail to the last known address for Davis as follows: 1603 Emerald Lake
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Court, Houston, Texas 77062.
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IT IS FURTHER ORDERED that service of the Summons and Amended Complaint in this
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action may be made upon Stephen Thornton (“Thornton”) by publication of the summons in a
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newspaper of general circulation in the area of Thornton’s last known address (Houston, Texas) and in
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the Las Vegas Review-Journal, a newspaper of general circulation in Las Vegas, Nevada, where this
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matter is currently pending. Said publications shall run once per week for four consecutive weeks. The
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service of summons and complaint shall be deemed complete upon the expiration of four weeks from the
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date of the first publication.
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IT IS FURTHER ORDERED that Plaintiff shall serve a copy of the Amended Complaint and
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Summons to Thornton via U.S. Mail to the last known address for Thornton as follows: 714 Heathgate
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Drive, Houston, Texas 77062.
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IT IS SO ORDERED.
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DATED this 23rd day of July, 2015.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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