Haan v. Gant
Filing
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OPINION AND ORDER granting 7 Defendant's Motion for Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 09/23/2014. (LH)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CHARLES W. HAAN,
Petitioner,
vs.
JASON M. GANT, in his official duty
and obligation as the South Dakota
Secretary of State - Elections,
Respondent.
I.
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crv 14-3009-RAL
OPINION AND ORDER
GRANTING SUMMARY
JUDGMENT TO DEFENDANT
Procedural History
On July 23,2014, Charles W. Haan filed a Petition for Writ of Mandamus and paid the
$400.00 filing fee to start a civil case. Haan, who was proceeding pro se, filed no other
pleadings. Haan sought to have Defendant Jason M. Gant, the South Dakota Secretary of State,
immediately certify Haan as a Constitution Party candidate for the United States House of
Representatives in the November election in South Dakota. Doc. 1.
Haan did not file a Complaint, even though Rule 3 of the Federal Rules of Civil
Procedure directs that "[ a] civil action is commenced by filing a complaint with the court." Haan
did not serve a summons with the Petition or any complaint on Gant, notwithstanding the
requirements of Rules 4 and 5 of the Federal Rules of Civil Procedure. The unusual manner in
which Haan chose to proceed resulted in delay in the case coming to the attention of this Court.
That is, Haan did not serve Gant and filed no motion-despite Rule 7(b)(1) of the Federal Rules
of Civil Procedure requiring that a "request for a court order must be made by motion."
Although this Court could have let the case languish, the public interest and time
constraints involved prompted this Court to proceed. Through an Order dated August 29, 2014,
this Court chose to construe the Petition for Writ of Mandamus as Haan's Complaint as time was
short before the November election and the relief Haan sought was evident from the Petition.
Doc. 4. This Court also directed service on Gant and scheduled a hearing for September 8,2014.
Doc. 4.
On September 5, 2014, Gant filed a Verified Answer and Motion for Judgment on the
Pleadings or in the Alternative, Motion for Summary Judgment.
Doc. 7.
Gant filed a
Memorandum and submitted a series of exhibits. Doc. 8; see Docs. 8-1-8-11 . On the day of the
September 8,2014 hearing, Gant filed a Supplemental Memorandum and two more documents.
Doc. 10; see Docs. 10-1-10-2. Haan likewise on September 8 filed an Affidavit to Support an
Order for Writ of Mandamus, with attachments thereto. Doc. 11; see Docs. 11-1-11-5.
Two matters became clear at the September 8, 2014 hearing. First, both parties wanted
a prompt ruling from the Court. Gant already had printed and distributed ballots omitting Haan's
name, and the November election is within two months. Thus, neither party was interested in
the fonnalities of twenty-one days to respond to the Statement of Undisputed Material Facts and
fourteen days to reply as contemplated in the Civil Local Rules for the District of South Dakota.
Second, no genuine issue of material fact existed. Haan contested Gant's application of state
statutes and relied on language in the United States Constitution and his own sense of what the
law ought to be for his inclusion as a candidate for the United States House of Representatives.
Gant disagreed with Haan's interpretation ofIaw. However, neither Haan nor Gant dispute the
facts of this case established through the materials submitted.
II.
Undisputed Material Facts
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Haan initially wanted to run as an Americans Elect candidate for the United States House
ofRepresentatives from South Dakota. Doc. 11. After exploring that possibility and considering
the platform ofthe South Dakota Constitution Party, Haan chose to join the Constitution Party.
The South Dakota Constitution Party was formed on March 1, 2004, by obtaining signatures of
at least 2.5% of the voters of the state as shown by the total votes cast for Governor in the
preceding gubernatorial election. Doc. 8-1 at 2; see S.D. Codified Laws (SDCL) § 12-5-1
(setting forth requirements to organize new political party). In 2006, Steven J. Willis qualified
as the Constitution Party candidate for Governor ofSouth Dakota by filing a petition with at least
250 signatures of Constitution Party members. Doc. 8-1 at 2. Willis ultimately received 4,010
votes or 1.2% of the vote for Governor. Doc. 8-1 at 2. The South Dakota Constitution Party lost
party status in 2006 when its candidate Willis failed to receive 2.5% of the vote. Doc. 8-1 at 2;
see SDCL § 12-1-3(1 0) (defining a "Political party" as "a party whose candidate for Governor
at the last preceding general election at which a Governor was elected received at least two and
one-half percent of the total votes for Governor").
Under SDCL section 12-5-1, the South Dakota Constitution Party again regained new
party status on April 18,2012. Doc. 8-1 at 2. Gant specifically informed the Constitution Party
in writing that, "a Gubernatorial, US Congress, and US Senate candidate must gather two
hundred and fifty signatures" to get on the ballot as a Constitution Party candidate. Doc. 8-2.
Gant also advised that the offices for which candidates must be nominated at the South Dakota
Constitution State Party convention were "Secretary ofState, Attorney General, State Treasurer,
State Auditor, Commissioner of School and Public Lands and Public Utilities Commissioner."
Doc. 8-2.
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On March 17,2014, eight days before the filing deadline for submitting a nominating
petition, Haan took out a nominating petition as a Constitution Party candidate for the United
States House of Representatives. Doc. 8-1 at 3; Doc. 8-3 at 2; Doc. 11 at 2. In an eight-day
period, Haan traveled the state to collect 204 signatures, 140 of which were valid signatures of
South Dakota Constitution Party members. Doc. 8-1 at 3; Doc. 8-3; Doc. 11 at 2. At that time,
the South Dakota Constitution Party only had somewhere between 400 and 600 members. Doc.
8-1 at 3-4.
Haan presented his nominating petition as a Constitution Party candidate for the United
States House of Representatives, by means of registered mail, to Gant on March 26, 2014. Doc.
8-1 at 3. Gant deemed the submission timely because it had been sent by registered mail and
postmarked on the filing deadline of March 25, 2014. Doc. 8-1 at 3; Doc. 8-3. The Secretary
of State's Office performed an examination of the nominating petition and determined that Haan
had submitted 204 signatures, ofwhich only 140 were valid. Doc. 8-1 at 3. On March 27, 2014,
Gant informed Haan by letter that his nominating petition was denied because he failed to collect
250 valid signatures ofregistered Constitution Party members as required by SDCL section 12-5
1.4. Doc. 8-1 at 3; Doc. 8-4.
On March 30,2014, Gant's office received an email from Lori Stacey, State Chairwoman
of the Constitution Party of South Dakota, with an attached letter dated March 28, 2014,
purporting to certify Haan as the Constitution Party's 2014 nominee for the United States House
of Representatives. Doc. 8-1 at 4; Doc. 8-5. On April 4, 2014, Gant's office received a letter
from Haan, dated April 3, 2014, requesting that he be placed on the ballot as a candidate for the
United States House of Representatives by reason of automatic nomination under SDCL section
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12-6-9 and certification by Stacey. Doc. 8-1 at 5; Doc. 8-9. On May 30,2014, Haan met with
Gant in Pierre, South Dakota. Doc. 8-1 at 5. Gant informed Haan that because he failed to
submit a nominating petition with 250 valid signatures ofmembers of the Constitution Party, he
could not be placed on the ballot of the General Election in November. Doc. 8-1 at 5.
Haan tried once again to have his name added to the November ballot. On June 30, 2014,
Haan sent to Gant a Declaration of Candidacy as a United States citizen under Article I, Section
2 of the United States Constitution. Doc. 11 at 3; Doc. 11-2. Haan verified that he is at least
twenty-five years of age, has been a United States citizen for more than seven years, and is a
resident of the state of South Dakota, Doc. 11-2, which are the requirements defined in the
United States Constitution for eligibility to serve in the United States House of Representatives,
U.S. Const. art. I, § 2, cl. 2. Gant did not add Haan to the ballot and has begun printing and
distributing ballots for the November election.
Haan filed a nearly identical Petition for Writ of Mandamus in state court on or about
June 9,2014. Doc. 10-1. On September 5, 2014, the Honorable John L. Brown signed an Order
Granting Gant's Motion for Summary Judgment, denying Haan any relief, and upholding Gant's
decision under South Dakota statutes to refuse to place Haan on the November General Election
Ballot as a candidate. Doc. 10-2.
III.
Discussion
Gant has filed a motion for judgment on the pleadings or in the alternative for summary
judgment. Doc. 7. A strict application ofthe Federal Rules of Civil Procedure, the well-pleaded
complaint rule, and the limitations on federal court authority to issue writs of mandamus to
compel state employees to follow state law provide arguable grounds for dismissal under Rule
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12 ofthe Federal Rules of Civil Procedure. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 105-06 (1984) (stating that federal courts have no authority to issue writs ofmandamus
to direct state officials to conform their conduct to state law); Thomas v. United Steelworkers
Local 1938,743 F.3d 1134, 1139 (8th Cir. 2014) ("Under the well-pleaded complaint rule, a
federal question must exist on the face of the plaintiffs properly pleaded complaint in order to
establish federal question subject matter jurisdiction. "). However, this Court already has chosen
to read Haan's Petition for Writ of Mandamus as a Complaint putting at issue whether his
constitutional rights to be a candidate have been infringed, because that is the gist of his action
and because the interests of the public and the parties ultimately lie with expeditious resolution
of that question rather than forcing Haan to better plead his claim.
Gant asks that his motion be considered as one for summary judgment should this Court
consider matters outside the pleadings. Federal Rule of Civil Procedure I2( d) directs that a
motion under Rules I2(b)(6) or I2© be treated as amotion for summary judgment when "matters
outside the pleadings are presented to and not excluded by the court." Fed. R. Civ. P. I2(d) .
Because this Court considered information outside of the initial pleadings submitted by both
Haan and Gant, it treats Gant's motion as one for summary judgment.
"Summary judgment is appropriate when the record, viewed in the light most favorable
to the non-moving party, demonstrates that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter oflaw." S & A Farms, Inc. v. Farms.com, Inc.,
678 F.3d 949, 952 (8th Cir. 2012) (quoting Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594,
602 (8th Cir. 2011); see Fed. R. Civ. P. 56©. "The nonmoving party is entitled to all reasonable
inferences that may be drawn from the evidence but not to inferences that may only be drawn by
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resorting to speculation." Culton v. Mo. Dep't of COITs., 515 F .3d 828, 830 (8th Cir. 2008)
(quoting Williams v. City of Carl Junction, Mo., 480 F.3d 871, 873 (8th Cir. 2007». The
nonmoving party "must present more than a scintilla ofevidence and must advance specific facts
to create a genuine issue of material fact for triaL" Williams, 480 F.3d at 873 (quoting FDIC v.
Bell, 106 F.3d 258, 263 (8th Cir. 1997».
The Supreme Court ofthe United States has recognized a candidate's constitutional rights
under the First and Fourteenth Amendments to associate for political ends and to participate
equally in the electoral process. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Anderson
v. Celebrezze, 460 U.S. 780, 787-88 (1983).
Ballot-access restrictions implicate the
constitutional rights of voters to associate and cast their votes effectively. See Williams v.
Rhodes, 393 U.S. 23, 30 (1968). However, there is an "important state interest in requiring some
preliminary showing of a significant modicum of support before printing the name of a political
organization's candidate on the ballot" as a way of "avoiding confusion, deception, and even
frustration of the democratic process at the general election." Jenness v. Fortson, 403 U.S. 431,
442 (1971); see also Storer v. Brown, 415 U.S. 724, 732-33 (1974) (affinning California law
requiring independent candidates to show substantial public support before being placed on a
ballot).
In Anderson, the Supreme Court directed lower courts to balance the competing interests
by first considering "the character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments," and then evaluating "the precise interests put forward
by the State as justifications for the burden imposed by its rule." 460 U.S. at 789. In this
evaluation ofthe candidates' rights and the State's interest, the court must detennine the strength
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and legitimacy of the State's interests and whether those interests make it necessary to burden
the candidates' rights.
kl Weighing all of these factors, the court then must determine whether
the rule is constitutional. Id .
The standard of review of the challenged statute depends on the extent of the burden
imposed and the character of the right. Ifthe state election scheme imposes "severe burdens" on
constitutional rights, it may survive only ifit is "narrowly tailored and advance[s] a compelling
state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). If, on the
other hand, the scheme imposes "reasonable, nondiscriminatory restrictions" upon the plaintiffs
First and Fourteenth Amendment rights, it will survive so long as the State shows "important
regulatory interests." Id . (quoting Burdick, 504 U.S. at 434).
Haan's primary legal argument at the September 8 hearing was that he should be allowed
on the November ballot as a private citizen based on Article I, Section 2 of the United States
Constitution, which provides :
The House of Representatives shall be composed of Members
chosen every second Year by the People ofthe several States ....
No Person shall be a Representative who shall not have attained
to the Age of twenty five years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.
U.S . Const. art. I, § 2. Haan meets those requirements to be eligible as a candidate, but that
alone does not entitle him automatically to be on the ballot because he requests it. Two sections
later, the Constitution recognizes that the States shall have authority over holding and regulating
elections by providing:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof .. ..
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Id. art. I, § 4. The Supreme Court has recognized the interest and authority ofthe state to require
a candidate to meet a threshold showing of support through nominating petitions. Jenness, 403
U.S. at 442.
Haan could have collected signatures of at least 1% of those who voted in the last South
Dakota gubernatorial election to become an independent candidate for the United States House
of Representatives but did not do so. See SDCL § 12-7-1. That requirement is a burden, but not
a severe burden, as demonstrated by the fact that two independent candidates for United States
Senator from South Dakota fulfilled that requirement and will be on the November ballot. Thus,
the question becomes whether Gant violated Haan's constitutional rights by not including him
on the ballot as a Constitution Party candidate.
Haan challenges the South Dakota law requiring 250 signatures from members of a new
party for a candidate for Congress to be listed on a primary ballot. See SDCL § 12-5-1.4(1).
This is a ballot-access regulation. If the signature requirement imposes only reasonable and
nondiscriminatory restrictions, then the State's regulatory interests will likely justify the
restrictions. Timmons, 520 U.S. at 358.
In evaluating the reasonableness of the statute, this Court may consider "alleviating
factors" provided in the statutory scheme. Swanson v. Worley, 490 F.3d 894, 904 (11 th Cir.
2007); see also Storer, 415 U.S. at 740--41; Libertarian Party of Fla. v. Florida, 710 F.2d 790,
794 (11th Cir. 1983). Alleviating factors that would make the statute reasonable include
allowing voters to sign the petition regardless of party affiliation and allowing voters to sign
more than one petition. The Eleventh Circuit in Libertarian Party found that a 3% signature
requirement was valid in light of factors that eased the burden of getting signatures and
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compelling state interests. 710 F.2d at 794-95. Here, there are no identical alleviating factors,
as all 250 petition signers must be members of the new party.
Relatedly, this Court may consider whether the state regulation diminishes the available
pool ofsignatures. For example, in Storer, the challenged statute disqualified any voter who had
voted in a partisan primary. 415 U.S. at 740-41. The South Dakota statute at issue here requires
that a signatory be a registered voter of the new political party and limits a registered voter to
signing only one petition. SDCL § 12-5-1.4; § 12-6-8. Although the Supreme Court found that
disqualifying those who voted in a partisan primary from being eligible to sign the petition for
the Independent Party was not itself unconstitutional, the Court stated that "it should be
detennined whether the available pool is so diminished in size by the disqualification ... that
the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the
independent candidates .... " Storer, 415 U.S. at 740 (noting that gathering 325,000 signatures
in 24 days "would not appear to be an impossible burden"). Here, the pool is not so diminished
that the 250-signature requirement becomes unreasonable.
This Court also may consider past experience, that is, whether a minority-party candidate
has been successful in the past at obtaining access to the general ballot, as well as the
relationship between the showing of support through a petition requirement and the percentage
of the votes the candidate is expected to receive in the general election. Id. at 742-43. The
Constitution Party of South Dakota first became a political party in 2004, and succeeded in
putting its candidate's name on the gubernatorial ballot in 2006 through the petition process.
Doc. 8-1 at 2. The Constitution Party gubernatorial candidate did not receive 2.5% of the
gubernatorial vote, so the Constitution Party lost its status as a political party in South Dakota
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and had to refile to become a new political party. Doc. 8-1 at 2. The Constitution Party's ability,
however, to obtain access to the general ballot in 2006 suggests that the petition requirement is
not excessive and sets a reasonable threshold of sufficient support to justify inclusion on the
ballot.
In the analogous case of New York State Board of Elections v. Lopez Torres, 552 U.S.
196 (2008), the Supreme Court of the United States considered a state law requiring an
individual running for delegate to file a petition signed by 500 enrolled party members residing
in the assembly district approximately two months before the delegate primary. Id. at 200. The
delegate candidates had a 37-day window to obtain the 500 signatures of party members from
their district. Id. The Supreme Court found the state-imposed ballot-access requirement to be
"far from excessive" and within the State's authority to demand a person to show a "minimum
degree of support for candidate access to a primary ballot." Id. at 204.
The ballot-access requirement that Haan claims to be unconstitutional is similar to the
statute in Lopez Torres. The requirements to file a petition with 250 signatures of the new party
members in order to gain access to the primary election ballot is half the number of the "entirely
reasonable" 500-signature requirement in Lopez Torres. Id. The delegate candidates in Lopez
Torres had to collect 500 signatures from enrolled party members within their district, and there
were 150 assembly districts in New York. Id. at 200. The burden on a delegate candidate to
collect 500 signatures from party members living in one of 150 assembly districts is greater than
the burden imposed on a gubernatorial candidate in South Dakota to collect 250 signatures from
new party members living anywhere in South Dakota. As explained in Lopez Torres, the State's
authority to require candidates to demonstrate "a significant modicum of support" before they
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may gain access to the ballot applies equally to primary elections. Id. at 204 (citation omitted).
The signature requirement imposed by SDCL section 12-5-1.4(1) is a reasonable, .
nondiscriminatory means of achieving the state interest in requiring a minimum degree of
support before placing a candidate on the primary ballot. See Am. Party of Tex. v. White, 415
U.S. 767, 782-83 (1974) (upholding state requirement that gubernatorial candidate gather
signatures equaling 1% of vote from previous election); Jenness, 403 U.S. at 442 (upholding
state requirement that minor party candidates file nominating petition with 5% of eligible voters'
signatures).
Haan argued that the 250 petition signatures required from Constitution Party members
to gain access to the South Dakota ballot is unconstitutional because the Constitution Party had
only between 400 and 600 members in South Dakota at the time. Thus, a candidate for the
Constitution Party had to obtain at the time a high percentage of the party membership. Haan
cited no cases where a court has struck down a similar statute based on such an analysis. Haan
managed in seven days to collect 140 signatures of Constitution Party members on his
nominating petition and may have succeeded in getting 250 such signatures if he had started
earlier.
When viewed more broadly, the 250-signature requirement is a reasonable and
nondiscriminatory means of requiring South Dakotans wanting to run on a party ticket for
Congress to demonstrate a modicum ofsupport in order to justify ballot access. See Jenness, 403
U.S. at 442. The number 250 is merely .03125% of the South Dakota population,' .07451 % of
'The population of South Dakota is approximately 800,000. American FactFinder, United States
Census Bureau,
http://factfinder2 .census. govIfaces/tab leservi ces/j sf/pages/productview .xhtml ?src=bkmk (last visi ted
Sept. 18,2014).
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the number of voters who voted in the 2006 gubernatorial race,2 and far fewer than the 2.5% of
the voters of the State of South Dakota that the Constitution Party had to collect to organize as
a party under SDCL section 12-5-1. The fact that the 250-signature requirement reflects such
a high proportion ofConstitution Party members is due to the small number ofConstitution Party
registered members in South Dakota and not evidence of the unconstitutionality of the South
Dakota statutes.
This Court is sensitive to and mindful of the difficulties faced by minor-party candidates
who, unlike candidates of major political parties, usually are not well-financed and lack access
to resources available to established political parties. Nevertheless, this Court finds the 250
signature requirement to be reasonable. By mandating that a potential candidate for Congress
file a nominating petition containing 250 signatures from members of the candidate's political
party, the State achieves its regulatory interest in candidates attaining a sufficient modicum of
support prior to being listed on the ballet.
As explained above, because the signature
requirement imposes only reasonable and nondiscriminatory restrictions, the State's regulatory
interests are sufficient here to justify the restrictions.
Despite failing to file a nominating petition with 250 signatures of Constitution Party
members, Haan argues that he was automatically nominated pursuant to SDCL section 12-6-9
and became the Constitution Party's nominee for the United States House of Representatives
when Stacey, Chairwoman of the Constitution Party of South Dakota, certified him as a
candidate to Gant. South Dakota law, however, recognizes only two ways that individuals can
2The total number of voters in South Dakota in the gubernatorial race was 335,508. Constitution
Party of S.D. v. Nelson, 730 F. Supp. 2d 992,1006 n.3 (D.S.D. 2010), affirmed in part and vacated
in part, 639 F.3d 417 (8th Cir. 2011).
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become candidates for office. First, through the primary election process found at SDCL
Chapter 12-6, candidates for offices such as governor and for Congress may gain ballot access.
By the effort to obtain 250 signatures of Constitution Party members, Haan was attempting to
place his name in a primary and in turn on the general election ballot. A second way of
becoming a candidate is by party nomination at a convention under SDCL Chapter 12-5.
Nominations by party convention, however, may only be made for the following offices:
lieutenant governor, attorney general, secretary of state, state
auditor, state treasurer, commissioner of school and public lands,
and public utilities commissioner and in the years when a
President of the United States is to be elected, presidential
electors and national committeeman and national
committeewoman of the party.
SDCL § 12-5-21. The office of United States House of Representatives is not listed in SDCL
section 12-5-21.
Under South Dakota law, candidates for the United States House of Representatives are
chosen by the primary process. There is no state law authorizing the Secretary of State to place
a candidate for the United States House of Representatives on the ballot by party nomination
alone. rd . §§ 12-5-21, 12-6-1. As such, nominees for the office of United States House of
Representatives are subject to the primary process found in SDCL Chapter 12-6. Accordingly,
Stacey's certification of Haan as a Constitution Party candidate, even if the Constitution Party
had held a convention, does not entitle him to be on the general election ballot for the United
States House of Representatives. Haan has made no argument, other than what has been
addressed above, regarding the constitutionality of this restriction on nominations from party
conventions.
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IV.
Conclusion
For the reasons explained above, it is hereby
ORDERED that Gant's motion for summary judgment, Doc. 7, is granted based on Rule
56 of the Federal Rules of Civil Procedure. It is further
ORDERED that Haan's Petition for Writ of Mandamus is denied and dismissed.
til
Dated September ~, 2014.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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