Benjamin v. Sparks, et al
Filing
209
ORDER granting in part and denying in part 137 Motion to Seal Document, 152 Motion to Seal, 178 Motion to Seal, 195 Motion to Seal, 198 Motion to Amend/Correct, and 201 Motion to Seal. Counsel should read the order in its entirety for critical deadlines and information. Signed by US Magistrate Judge Kimberly A. Swank on 8/28/2018. (Sellers, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:14-CV-186-D
SAUL HILLEL BENJAMIN,
Plaintiff,
v.
NICHOLAS SPARKS, et al.,
Defendants.
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ORDER
This matter is before the court on Defendants’ motions to seal certain filings
[DE ##137, 152, 178, 195, 198, 201]. Plaintiff has responded in opposition [DE ##158,
159, 206], and the matter is ripe for ruling. The matter has been referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) for disposition by the Honorable
James C. Dever III, Chief United States District Judge. For the reasons stated below,
Defendant’s motions to seal are DENIED.
BACKGROUND
Plaintiff filed his initial compliant [DE #1] on October 2, 2014, and amended
that complaint on May 28, 2015 [DE #51]. Plaintiff entered into an employment
contract with Defendants in February 2013 (Am. Compl. [DE #51] ¶ 20 at 6); this
contract was allegedly terminated on November 22, 2013 (Am. Compl. ¶ 116 at 27).
The Amended Complaint alleges, inter alia, that Defendants breached an
employment contract with Plaintiff; discriminated and retaliated against Plaintiff in
violation of 42 U.S.C. § 1981, Title VII, and the Americans with Disabilities Act; and
committed various torts, including defamation concerning Plaintiff’s mental health
and physical abilities. (Am. Compl. at 28–43.) Plaintiff alleges emotional distress and
mental anguish as a result of many of Defendants’ alleged actions. (Am. Compl. ¶¶
122, 127, 132, 137, 142, 147, 152, 177-78, 186(c), 191(d), 195, 198, 203.)
Defendants seek to seal documents in connection with their motion for leave to
file an amended answer and documents in connection with their motion for summary
judgment. Defendants also seek to seal documents filed by Plaintiff in response to the
aforementioned motions.
DISCUSSION
I.
Standard of Review for Motion to Seal
“The public’s right of access to judicial records and documents may be
abrogated only in unusual circumstances.” Stone v. Univ. of Md., 855 F.2d 178, 182
(4th Cir. 1988). This is so because “public access promotes not only the public’s
interest in monitoring the functioning of the courts but also the integrity of the
judiciary.” Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (citing Columbus-
America Discovery Grp. v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000)).
As a general matter, “[t]he right of public access to documents or materials
filed in a district court derives from two independent sources: the common law and
the First Amendment.” Virginia Dep’t of State Police v. Washington Post, 386 F.3d
567, 575 (4th Cir. 2004) (citing Stone, 855 F.2d at 180). The common law right of
access applies to all judicial records but “does not afford as much substantive
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protection to the interests of the press and the public as does the First Amendment.”
Id. (quoting Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir. 1988)). To
overcome the common law right of access, the party seeking to seal documents bears
the burden to show that “countervailing interests heavily outweigh the public
interests in access.” Id. (quoting Rushford, 846 F.2d at 253). In contrast, if the First
Amendment right of access applies, the court can only seal the documents because of
a compelling governmental interest, and the restriction must be narrowly tailored to
serve that governmental interest. Id. Before engaging in the process described below,
the court must preliminarily determine whether the right of access at issue derives
from the common law or the First Amendment so that “it [can] accurately weigh the
competing interests at stake.” Doe, 749 F.3d at 266.
To determine whether records should be sealed, this court must follow the
procedure established in In re Knight Publ’g Co., 743 F.2d 231 (4th Cir. 1984). First,
the court must provide public notice of the request to seal and allow interested parties
a reasonable opportunity to object. Id. at 235–36. Notice is sufficient where a motion
is docketed reasonably in advance of its disposition. Id. at 235. Second, the court
considers less drastic alternatives, such as redaction of any sensitive material. Id. at
235–36. Then, if the court determines that public access should be denied, the court
must provide specific reasons and factual findings supporting the decision to seal. Id.
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II.
Analysis
Defendants have moved to seal documents, some of which appear to derive
their public right of access from the First Amendment (e.g., documents filed in
connection with motion for summary judgment) and some of which appear to derive
their right of access from the common law (e.g., documents filed in connection with a
motion to amend an answer). Because there is some overlap between the documents,
the court first addresses those documents for which the right of access derives from
the First Amendment.
A.
Summary Judgment Documents
Summary judgment is effectively a substitution for trial, and therefore, the
First Amendment right of access attaches to documents submitted in connection with
motions for summary judgment. Rushford, 846 F.2d at 252–53. Here, four of
Defendants’ motions to seal pertain to their motions for summary judgment. (Defs.’
Mot. Seal [DE #152]; Defs.’ Joint Mot. Seal Pls.’ Mem. Opp. Mot. Summ. J. & Mot.
Amend Answer [DE #178]; Defs.’ Joint Mot. Seal Replies Supp. Mot. Summ. J. [DE
#195]; Defs.’ Joint Mot. Seal The Epiphany School’s Reply Supp. Mot. Summ. J. [DE
#201].)1
The motion to seal filed at DE #152 seeks to seal (1) exhibits contained in
Defendants’ Appendix of Confidential Documents which are listed in Exhibits C
The motion to seal filed at DE #178 also pertains to documents filed in
connection with Defendants’ motion to amend their answer to add an affirmative
defense.
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[DE #152-4], D [DE #152-5], and E [DE #152-6] to the motion to seal; (2) the
statement of undisputed material facts of Defendants Sparks and The Nicholas
Sparks Foundation (Foundation) [DE #149] in support of their motion for summary
judgment; (3) the statement of undisputed material facts of Defendant The Epiphany
School of Global Studies (School) [DE #132] in support of its motion for summary
judgment; (4) Defendant Sparks’ memorandum in support of his motion for summary
judgment [DE #151]; (5) Defendant Foundation’s memorandum in support of its
motion of summary judgment [DE #150]; and (6) Defendant School’s memorandum
in support of its motion for summary judgment [DE #133].
The motion to seal filed at DE #178 seeks to seal the following documents filed
in connection with the summary judgment motions: (1) Plaintiff’s memorandum in
opposition to Defendant Sparks’ motion for summary judgment [DE #168];
(2) Plaintiff’s memorandum in opposition to Defendant Foundation’s motion for
summary judgment [DE ##169, 171]; (3) Plaintiff’s memorandum in opposition to
Defendant School’s motion for summary judgment [DE #176]; (4) Plaintiff’s Local
Rule 56.1 counterstatements in response to Defendants’ statements of undisputed
material facts filed in connection with Defendants’ summary judgment motions
[DE ##167, 170]; (5) certain materials Plaintiff filed in support of his opposition to
Defendants’ summary judgment motions, which have been identified by Defendants
in Exhibits B [DE #178-3], C [DE #178-4], and D [DE #178-5]; and (6) Plaintiff’s
Appendix to his Local Civil Rule 56.1 counterstatements [DE ##172, 173], identified
by Defendants in Exhibits B [DE #178-3], C [DE #178-4], and D [DE #178-5].
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The motion to seal filed at DE #195 seeks to seal the following documents:
(1) Defendants Sparks and the Foundation’s response to Plaintiff’s statement of
additional material facts [DE #194]; (2) Defendant School’s response in support of its
motion for summary judgment [DE #186]; (3) Defendant Foundation’s reply in
support of its motion for summary judgment [DE #188]; (4) Defendant Sparks’ reply
in support of his motion for summary judgment [DE #193]; Defendants Sparks and
the Foundation’s responses to Plaintiff’s evidentiary objections [DE #191];
(5) Defendant School’s responses to Plaintiff’s evidentiary objections [DE #187]; and
(6) exhibits identified in Defendants’ Supplemental Appendix [DE #192].
The motion to seal filed at DE #201 seek to seal the following documents:
(1) Defendant School’s reply in support of its motion for summary judgment
[DE #200]; (2) Defendant School’s responses to Plaintiff’s counterstatement of
additional facts [DE #186]; and (3) Defendant School’s responses to Plaintiff’s
evidentiary objections [DE #187].
Pursuant to the procedure outlined in Knight, Defendants’ motions to seal have
been docketed and made publicly available on the court’s computerized case
management and case filing system since their respective filing dates in November
2017 and January 2018. Thus, the public has been provided with notice and an
opportunity to object to Defendants’ motions to seal. See Knight, 743 F.2d at 234
(noting that the Third Circuit found notice sufficient where a motion was docketed
reasonably in advance of its disposition); see also Oliver v. Williams, No. 5:09-CT3027-H, 2010 WL 2927456, at *1 (E.D.N.C. July 21, 2010).
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On April 4, 2018, journalist Amanda Holpuch (who had previously published
an article about this lawsuit) submitted a letter to the court expressing opposition to
Defendants’ motions to seal the summary judgment materials [DE #208].
In support of their motions to seal, Defendants identify three interests they
contend are sufficient to rebut the First Amendment and which require wholesale
sealing of the above-mentioned documents: (1) information relating to students; (2)
information relating to internal governance and decision-making processes of
Defendant School and Defendant Foundation; and (3) personnel matters relating to
third parties. (Defs.’ Mem. Supp. Mot. Seal. [DE #153] at 6–13; Defs.’ Joint Mem.
Supp. Defs.’ Mot. Seal Replies Supp. Mots. Summ. J. [DE #196] at 2–4; Defs.’ Joint
Mem. Supp. Mot. Seal School’s Reply Supp. Mot. Summ. J. [DE #202] at 2–4; Defs.’
Reply Pl.’s Mem. Opp. Defs.’ Joint Mot. Seal Replies [DE #207] at 1–3.)
Defendants also argue that Plaintiff has failed “to articulate any reason why
the public needs access” to the materials sought to be sealed. (Defs.’ Joint Mem. Supp.
Defs.’ Mot. Seal Replies Supp. Mots. Summ. J. [DE #196] at 3; Defs.’ Reply Pl.’s Mem.
Opp. Defs.’ Joint Mot. Seal Replies [DE #207] at 2–3.) “The burden to overcome a
First Amendment right of access rests on the party seeking to restrict access.”
Virginia Dep’t of State Police, 386 F.3d at 575. Furthermore, a member of the press
has objected to the motions to seal the summary judgment materials. Lastly, this
argument fails to address the judicial integrity component of the right of access. See
Doe, 749 F.3d at 266. Accordingly, the court rejects this argument and turns to
Defendants’ asserted compelling interests.
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i.
Information Relating to Students
The court has reviewed the various documents Defendants seek to seal on the
ground they reveal identifying information about students of Defendant School. (See
Ex. C [DE #152-4]; Ex. B [DE #178-3]; Ex. A [DE #195-2].) Some of these documents
contain the names of students; some of these documents contain the names of parents
of students which could be used to deduce the identities of students; and some of these
documents contain absolutely no identifying information about students. Redaction
of students’ names and those of their parents is practicable as to these documents
and is a less drastic alternative than the wholesale sealing that Defendants request.
Thus, the court determines that Defendants have not met their burden to overcome
the First Amendment right of access as to these documents and DENIES the motions
to seal these documents in their entirety. The court grants Defendants’ alternative
request to redact from these documents the names of students and their parents to
preserve the anonymity of the students discussed in the documents. Pursuant to
Local Civil Rule 79.2(b)(3), the documents previously filed will remain sealed.
Defendants shall submit redacted versions of the documents for the court’s
consideration on or before September 5, 2018.
ii.
Internal Governance and Decision-Making Procedures
Defendants also seek to seal certain documents on the ground they reveal
information about the internal governance and decision-making procedures of
Defendants School and Foundation. (See Ex. D [DE #152-5]; Defs.’ Mem. Supp. Mot.
Seal. [DE #153] at 9–12; Ex. C [DE #178-4]; Defs.’ Joint Mem. Supp. [DE #179] at 11–
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13; Ex. B [DE #195-3]; Defs.’ Joint Mem. Supp. Defs.’ Mot. Seal Replies Supp. Mots.
Summ. J. [DE #196] at 3–4; Defs.’ Joint Mem. Supp. Mot. Seal School’s Reply Supp.
Mot. Summ. J. [DE #202] at 3–4; Defs.’ Reply Pl.’s Mem. Opp. Defs.’ Joint Mot. Seal
Replies [DE #207] at 1–3.) More specifically, they contend these documents contain
strategic information about the operation of their organizations (hiring and firing,
recruitment of faculty and staff, donor fundraising, organizational grievance reports,
regulation of student clubs, and internal finances) and that the revelation of this
information would frustrate the respective organizations’ purposes (i.e., to educate
its students and to further the charitable aims of the Foundation). Defendants
analogize this information to strategic, internal business information which they
contend courts have held to be a “higher value” sufficiently on par with a government
interest to, on occasion, constitute a compelling interest sufficient to overcome the
First Amendment right of access to judicial records. (See, e.g., Defs.’ Mem. Supp. Mot.
Seal. [DE #153] at 6.) To further articulate the harm about which they are concerned,
Defendants have submitted declarations of Board of Trustees Members Samuel
McKinley Gray, III (Gray Decl. [DE #152-2]) and Defendant Sparks (Sparks Decl.
[DE #152-3). (See Defs.’ Reply Pl.’s Mem. Opp. Defs.’ Joint Mot. Seal Replies [DE
#207] at 2.)
Mr. Gray states that disclosure of the documents would hinder Defendant
School’s recruiting and retention efforts because (1) parents would be concerned that
confidential information about their children would be publicized; and (2) board
members and staff would be “alarmed” that discussions and information about
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personnel issues, educational challenges, and student welfare would no longer be
confidential. Defendant Sparks indicates similar concerns as to the Foundation,
noting that it would hinder donor and staff recruitment if private employment
matters discussed on a “need to know” basis were disclosed. (See Gray Decl. [DE #1522] at 3–4; Sparks Decl. [DE #152-3] at 3–4.)
The court shares Defendants’ concern about the disclosure of the identities of
the schoolchildren, and, therefore, has granted Defendants’ request to redact from
the documents the names and other information from which the students could be
identified. However, a review of the materials sought to be sealed leads the court to
conclude that these materials are overwhelmingly about the handling of a particular
employment matter, namely, the circumstances leading to the termination of
Plaintiff’s relationship with the School and Foundation. While Defendants “very well
may desire that the allegations lodged against [them] in the course of litigation be
kept from public view to protect [their] image[s], the First Amendment right of access
does not yield to such an interest.” Doe, 749 F.3d at 269. The adjudication of claims
involving embarrassing, injurious, and sensitive information such as that involved in
this case is part of the “day-to-day” operations of the federal courts. Id. Having
reviewed the materials sought to be sealed and the interests articulated by
Defendants, the court determines that Defendants have not shown that the
circumstances here are so unusual as to overcome the First Amendment’s right of
access. See Stone, 855 F.2d at 182.
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The court has also reviewed the cases cited by Defendants in support of their
motions to seal.2 The cases stand for the propositions that Defendants cite them for
but are distinguishable in important ways. For example, some of the cases involve
the common law right of access or a motion to seal a non-dispositive motion. See
Rosinbaum, 2017 WL 1424436 (common law right of access); Charter Oak, 2015 WL
1242684 (cited section addresses redactions to an answer). Many of the cases involved
motions to seal that were unopposed, and none of the cases cited appears to have
involved a situation where a member of the public objected to the sealing of judicial
records. It is also not clear how the information sought to be protected here is
analogous to a protected trade secret, Lord Corp., 2012 WL 4056755, at *1–2, or an
insurance company’s internal underwriting protocol, Charter Oak, 2015 WL 1242684,
at *6. Indeed, if “internal business procedures,” “sensitive financial information,” and
“employment decision-making” are deemed sufficient here to overcome the First
Amendment, the court fails to see why these interests would not be invoked in every
case involving an employment matter. Even Pittston Co., 368 F.3d 385, where the
Fourth Circuit upheld the district court’s discretion in denying a motion to unseal
certain documents, is distinguishable to the extent the district court noted that no
Pittston Co. v. United States, 368 F.3d 385 (4th Cir. 2004); Rosinbaum v.
Flowers Foods, Inc., No. 7:16-CV-233-FL, 2017 WL 1424436 (E.D.N.C. Jan. 23, 2017);
360 Mortgage Grp., LLC v. Stonegate Mortgage Corp., No. 5:14-CV-310-F, 2016 WL
4939308 (E.D.N.C. Sept. 14, 2016); Charter Oak Fire Ins. Co. v. Am. Capital, Ltd.,
Civil Action No. DKC 09-0100, 2015 WL 1242684 (D. Md. Mar. 17, 2015); Lonesource,
Inc. v. United Stationers Supply Co., No. 5:11-CV-33-D, 2013 WL 3490390 (E.D.N.C.
July 11, 2013); and Lord Corp. v. S & B Tech. Prods., Inc., No. 5:09-CV-2015-D, 2012
2
WL 4056755 (E.D.N.C. Sept. 14, 2012).
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third party had asserted the public right of access. See Pittston Co. v. United States,
No. Civ. A. 3:97CV294, 2002 WL 32158052, at *2–3 (E.D. Va. Oct. 2, 2002). These
cases do not persuade the court that the circumstances of this case are so unusual as
to warrant an abrogation of the First Amendment right of access.
Given the heavy burden that Defendants must carry to overcome the
presumption and the objection to sealing filed by a member of the public, the court
DENIES the motions to seal the summary judgment materials to the extent they are
grounded on Defendants’ claimed interest of confidentiality regarding internal
governance and decision-making. If Defendants desire to have the documents
considered by the court in connection with their motions for summary judgment, they
shall refile the documents as public documents in accordance with Local Civil Rule
79.2(b)(3) on or before September 5, 2018.
iii.
Third-Party Personnel Information
The court has reviewed the various documents Defendants seek to seal on the
ground they reveal personnel information about third parties. (See Ex. E [DE #1526]; Ex. D [DE #178-5]; Ex. C [DE #195-4].) The majority of the information regards
the employment of Plaintiff, which is the heart of the lawsuit. Moreover, redaction of
sensitive information regarding third parties (i.e., email addresses) is a less drastic
alternative than the wholesale sealing sought by Defendants and is practicable here.
Thus, the court determines that Defendants have not met their burden to overcome
the First Amendment right of access as to these documents and DENIES the motions
to seal these documents in their entirety. The court grants Defendants’ alternative
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request to redact from these documents any sensitive information, including email
addresses or telephone numbers. Pursuant to Local Civil Rule 79.2(b)(3), the
documents previously filed will remain sealed. Defendants shall submit any redacted
versions of the documents for the court’s consideration on or before September 5,
2018.
B.
Motion to Amend Answer Documents
Defendant Sparks also moves to seal certain documents filed in connection
with his motion to amend his answer to add an affirmative defense. (Def. Sparks’ Mot.
Seal Excerpts Mem. Supp. Mot. Amend Answer [DE #137]; Defs.’ Joint Mot. Seal Pls.’
Mem. Opp. Mot. Summ. J. & Mot. Amend Answer [DE #178] at ¶¶ 1, 6.)
Several documents Defendant Sparks seeks to seal regarding his motion to
amend the answer are also sought to be sealed in connection with Defendants’
summary judgment motions. (See Pl.’s Mem. Opp. Def. Sparks’ Mot. Seal [DE #158]
at 2; Def. Sparks’ Reply Pl.’s Mem. Opp. Def. Sparks’ Mot. Seal [DE #182] at 2–3.)
Because the court has denied the request to seal these documents in connection with
the summary judgment matter, the request to seal the documents in connection with
the motion to amend must similarly be denied.
The remaining documents Defendant Sparks seeks to seal in connection with
his motion to amend the answer are (1) Ex. 4 [DE #135-2], excerpts from a deposition
of Jenna Dueck; and Ex. 6 [DE #135-4], excerpts from a deposition of Thomas Plihcik,
filed in support of the motion to amend the answer; (2) excerpts from his
memorandum in support of his motion to amend the answer (Mem. Supp. Mot. Leave
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File Am. Answer [DE #136]; Ex. A, Redacted Mem. Supp. Mot Leave File Am. Answer
[DE #137-2]); (3) Plaintiff’s memorandum in opposition to the motion to amend the
answer (Pl.’s Mem. Opp. Def. Sparks’ Mot. Amend [DE #163]); and (4) certain
materials Plaintiff filed in support of his opposition to the motion to amend and
motion to seal, identified by Defendant Sparks in Ex. B [DE #178-3], Ex. C [DE #1784], and Ex. D [DE #178-5]. (Def. Sparks’ Reply Pl.’s Mem. Opp. Def. Sparks’ Mot. Seal
[DE #182] at 1; Defs.’ Joint Mot. Seal Pls.’ Mem. Opp. Mot. Summ. J. & Mot. Amend
Answer [DE #178] at ¶¶ 1, 6.)
Assuming without deciding that the common law right of access would apply
to these documents rather than the First Amendment right of access, Defendant
Sparks has failed to show that “countervailing interests heavily outweigh” the right
of access to these judicial records. See Virginia Dep’t of State Police, 386 F.3d at 575.
The deposition excerpts from Jenna Dueck and Thomas Plihcik contain information
specifically relating to the circumstances under which Plaintiff’s employment with
Defendants began and ended, which is central to the lawsuit. Review of these
deposition excerpts reveals no sensitive information relating to the internal
governance or decision-making of the Defendant School or Defendant Foundation
that would justify sealing. Moreover, aside from the very names of Ms. Dueck and
Mr. Plihcik, there is no sensitive third-party information disclosed. Review of the
additional materials listed above that Defendant Sparks seeks to seal leads the court
to the same conclusion. Therefore, Defendant Sparks’ motion to seal documents filed
in connection with his motion to amend the answer is DENIED. Defendant Sparks
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shall refile the documents as public documents in accordance with Local Civil Rule
79.2(b)(3) on or before September 5, 2018, if he desires to have the court consider the
documents in ruling on the motion to amend his answer.
CONCLUSION
For the foregoing reasons, Defendants’ motions to seal [DE ##137, 152, 178,
195, 198, 201] are GRANTED IN PART and DENIED IN PART as more fully set forth
above. Pursuant to Local Civil Rule 79.2(b)(3), it is further ORDERED as follows:
1.
All documents previously filed as proposed sealed documents will
remain under seal and may be considered for such purposes as deemed appropriate
by the court;
2.
Defendants shall have until September 5, 2018, to make the redactions
authorized hereinabove and to submit any proposed redacted versions of documents
for the court’s consideration in connection with Defendants’ summary judgment
motions;
3.
Defendants shall have until September 5, 2018, to refile as public
documents any other documents previously filed as proposed sealed documents that
Defendants desire the court to consider in connection with their motions for summary
judgment and Defendant Sparks’ motion to amend answer.
This 28th day of August 2018.
_______________________________
_______________________________
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_
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KIMBERLY A. SWANK
LY
LY
United States Magistrate Judge
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