TSquare Apts LLC v. AMLI/BPMT Towne Square Partnership et al

Filing 97

MEMORANDUM OPINION AND ORDER granting 71 AMENDED 26 MOTION to Dismiss for Lack of Subject Matter Jurisdiction (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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United States District Court Southern District of Texas ENTERED February 10, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TSQUARE APTS LLC, David J. Bradley, Clerk § § Plaintiff, v. AMLI/BPMT TOWNE SQUARE PARTNERSHIP; AMLI RESIDENTIAL PROPERTIES, L.P.; AMLI RESIDENTIAL PARTNERS LLC; AMLI MANAGEMENT COMPANY; and PENSIOENFONDS METAAL EN TECHNIEK (PMT) f/k/a STICHTING BEDRIJFSPENSIOENFONDS VOOR DE METAAL EN TECHNISCHE BEDRIJFSTAKKEN (BPMT), Defendants. § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-16-0873 MEMORANDUM OPINION AND ORDER Pending before the court is AMLI Defendants' Amended Motion to Dismiss for Lack of Subject -Matter Jurisdiction Support ( "AMLI' s Amended Motion to Dismiss") and Brief in (Docket Entry No. 71) . For the reasons stated below, the motion will be granted. I. Factual and Procedural Background Plaintiff TSquare Apts LLC ("TSquare") recover alleged damages arising out of filed this action to its purchase of a multi-family residential apartment complex. 1 TSquare alleges that it purchased the mid-rise apartment complex located near downtown Houston, Texas ("the Complex"), from AMLI/BPMT Towne Square Partnership ( "AMLI/BPMT") on or around September 25, 2012. 2 On or around Memorial Day 2015, heavy rainfall resulted in damage to the Complex. 3 TSquare alleges that during repairs it discovered evidence of previously undisclosed damage and repairs that had been hidden by AMLI/BPMT. 4 TSquare filed suit on April 1, 2016. 5 AMLI Residential Properties, L.P. Partners, LLC (collectively, alternatively, ( "AMLI "the LLC" ) AMLI I Defendants AMLI/BPMT, ("AMLI L.P."), AMLI Residential and AMLI Defendants") Management moved for a more definite statement. 6 conference held on June 24, 2016, to Company dismiss or, At a scheduling the court ordered TSquare to 1 Plaintiff TSquare Apts LLC's First Amended Complaint ("Plaintiff's Amended Complaint"), Docket Entry No. 70, p. 1. 2 Id. at 4 3 Id. ~ 13. ~ 14. 5 See Plaintiff TSquare Apts LLC's Original Complaint, Docket Entry No. 1. 6 See Defendants' Motion to Dismiss, and Alternatively, Motion for More Definite Statement, and Brief in Support, Docket Entry No. 11. -2- amend its complaint to identify members and partners of the defendant entities, along with their residences, so that the court could determine whether it had jurisdiction. 7 after conducting amended tortious complaint, jurisdictional asserting interference, misrepresentation, and fraud, discovery, claims for fraudulent conspiracy On November 1, 2016, to TSquare breach filed its of contract, inducement, negligent commit fraud. 8 The AMLI Defendants then filed AMLI's Amended Motion to Dismiss. 9 TSquare is a limited liability company ("LLC") with members who are citizens of Colorado . 10 AMLI/BPMT, AMLI L. P., and AMLI LLC (collectively, "the Member Entities") are members of a complex and multilayered structure of partnerships and limited liability companies (See Organizational Chart below.) of which Prime Property Fund, LLC ("Prime, LLC") is a part. 11 7 Hearing Minutes and Order, Docket Entry No. 21. 8 Plaintiff's Amended Complaint, Docket Entry No. 70, pp. 8-15. 9 See AMLI's Amended Motion to Dismiss, Docket Entry No. 71. Plaintiff' s Amended Complaint, Docket Entry No. 70, p. 1 ~ 1; Appendix A to Plaintiff's Amended Complaint, Docket Entry No. 70-1. 10 11 See Supplemental Declaration of Lidia Novak (Under Seal) ("Novak Declaration") , Docket Entry No. 31, pp. 1-3; see also Organizational Chart, AMLI' s Amended Motion to Dismiss, Docket Entry No. 71, p. 8. -3- Sole Member r PPF OPGP, LLC I GP Prime Property Fund, LLC ~ Adviser LP Morgan Stanley Real Estate Advisor, Inc. PPF OP, LP Sole Member PPF Multifamily, LLC Sole Member Sole Member PPF AMLI Acquisition, LLC LP AMLI Residential Partners. LLC GP AMLI Residential Properties, L.P. Sole Member AMLI REIT Holdings, LLC Sole Member AMLI Towne Square, LLC Partner AMLI/BPMT Towne Square.__ ____. Partnership -4- Partner The AMLI Defendants argue that the citizenship of one or more of the Member Entities is determined by the citizenship of Prime, LLC, which is a citizen of Colorado citizenship of two of its rnernbers. 12 because of the Colorado The AMLI Defendants argue that the parties are therefore not completely diverse and that the court lacks jurisdiction over this action. Prime, TSquare disputes whether LLC's citizenship ultimately determines whether the court has subject-matter jurisdiction and argues that, in any event, Prime, LLC is not a citizen of Colorado. 13 II. A. Analysis Applicable Law "Federal courts are courts of lirni ted jurisdiction." v. Guardian Life Insurance Company of America, 1675 (1994). matter 114 S. Kokkonen Ct. 1673, A party may assert the defense of lack of subject jurisdiction in a Rule 12 (b) (1) motion. "'A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.'" Horne Builders Association of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998). The burden of establishing federal jurisdiction rests with the party 12 AMLI' s Amended pp . 7 - 9 , , 8 - 9 . Motion to Dismiss, 13 Docket Entry No. 71, Plaintiff's Response to AMLI Defendants' Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction ("Plaintiff's Response"), Docket Entry No. 83, pp. 4-5. -5- asserting its existence. DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 n.3 (2006). "Courts may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, Texas, 798 F.2d 736, 741 (5th Cir. 1986). Rule 12(b) (1) challenges to subject matter jurisdiction "factual" attacks. (5th Cir. 1981). come in two forms: "facial" See Paterson v. Weinberger, attacks and 644 F.2d 521, 523 A facial attack consists of a Rule 12(b) (1) motion unaccompanied by supporting evidence that challenges the court's jurisdiction based solely on the pleadings. Id. A factual attack challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings -such as testimony and affidavits -- may be considered. Id. Because the parties have each submitted evidence outside the pleadings, the AMLI Defendants' motion is a factual attack; and the court will consider the evidence in the record, resolving any disputed facts. Courts have original jurisdiction over civil actions where the parties are diverse and the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. § 1332 (a) . 14 The Supreme Court has 14 Neither party disputes that requirement is met in this case. -6- held that the § 1332 28 u.s.c. requires amount-in-controversy "complete diversity" since 1806. See McLaughlin v. Power Co., 376 F.3d 344, 353 (5th Cir. 2004) Curtiss, 7 U.S. (3 Cranch) Mississippi (citing Strawbridge v. 267, 2 L. Ed. 435 (1806)). "Complete diversity requires that all persons on one side of the controversy be citizens of different states side." than all persons on the other Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (internal quotation marks and citations omitted). For artificial entities other than corporations, jurisdiction in a diversity suit by or against an entity depends on the citizenship of all its members. Americold Realty Trust v. Conagra Foods, 1015 Inc., 136 S. Ct. 1012, ( 2016) (citations omitted) . Where artificial entities are members of other artificial entities, repeated application of the rule may be necessary as citizenship is traced through organizational layers. Holdings, L.L.C., 618 F. App'x 765, 768 See Alphonse v. Arch Bay (5th Cir. 2015) (citing Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir. 2009)). The Fifth Circuit has joined the majority of circuits in holding that these rules apply to limited liability companies as well as partnerships. B. Grey Wolf, 542 F.3d at 1080. Application The essential question in this action is whether Prime, LLC, and as a result, the Member Entities, are citizens of Colorado because of the citizenship of two of Prime, (i) the City of Aurora General Employees' LLC's shareholders: Retirement Plan Aurora Plan"), a Colorado public pension fundi and (ii) -7- ("the the Fire and Police Pension Association of Colorado ("the Pension Association"), a political subdivision of Colorado (collectively, "the Colorado Entities") 15 the Colorado citizenship diversity, it relationship, of is the Although the parties dispute whether undisputed that whatever it may be, Entities 16 both to has entities Prime, any bearing on have LLC. 17 the The same court therefore combines its analysis of the Colorado Entities except where otherwise stated. In attachments to its Amended Complaint TSquare sets forth its citizenship as well as what it alleges to be the citizenship of the AMLI Defendants. 18 But TSquare states that it "lacks sufficient knowledge and information to form a belief about the citizenship" of Prime, LLC. 19 Nevertheless, TSquare alleges that it believes that Prime, LLC is a single member LLC. 20 15 AMLI's Amended Motion to Dismiss, Docket Entry No. 71, p. 9. 16 The parties do not, however, appear to dispute Colorado Entities are Colorado citizens. that the 17 See Plaintiff's Response, Docket Entry No. 83, p. 7 ("AMLI Defendants claim the Pension Fund and the Pension Association are both 'member-owners' and hold the same interest in Prime Property Fund, LLC [Doc. 71 ~ 20]. Accordingly, the Pension Association's sworn declaration stating it is not a member of Prime Property Fund, LLC likewise demonstrates the Pension Fund is not a member of Prime Property Fund, LLC."). 18 See Appendix B to Plaintiff's Amended Complaint, Docket Entry No. 70-2, p. 2 ~~ 10-11. 19 Id. ~ 10. -8- In support of their argument that Prime, LLC has Colorado members the AMLI Defendants first cite to the Amended and Restated Limited Liability Company Agreement of Prime, LLC ("Fund Operating Agreement") , which states in Article 3, Section 3. 03 (a) that "[e]ach Initial Subscribing Shareholder of Voting Shares in exchange for agree[s] to pay consideration to the Company . . . Voting Shares of the Company. " 21 Second, the AMLI Defendants cite to subscription agreements signed by the Colorado Entities, which state, shares in relevant part, in Prime, LLC. 22 that each entity subscribed for Third, the AMLI Defendants note that TSquare previously filed as exhibits statements purporting to show the Colorado Entities' Fund. " 23 ownership percentages in "Prime Property Fourth, the AMLI Defendants attach redacted copies of IRS Form 1099-DIV for each of the Colorado Entities showing that each receives quarterly dividend statements from Prime, LLC. 24 Finally, the AMLI Defendants submit signed, written consent forms showing that each of the Colorado Entities, as "a holder of Voting Shares of [Prime, LLC,] a Delaware limited liability company" consented to 21 AMLI's Amended Motion to Dismiss, Docket Entry No. 71, p. 14 ~ 21 (citing Fund Operating Agreement, Docket Entry No. 72-1, Art. 3, Section 3.03(a), p. 17). Id. ~~ 22-23 (citing Docket Entry Nos. 31-1, p. 35 and 31-3, pp. 29-30) . 22 23 Id. ~ 25 (citing Docket Entry Nos. 56-3, p. 2 and 56-4, p. 4) . 24 Id. (citing Pension Fund's 2015 1099-DIV and Political Subdivision's 2015 1099-DIV, Exhibits C & D to AMLI's Amended Motion to Dismiss, Docket Entry Nos. 72-3 and 72-4, respectively). -9- the election of each of the Independent Directors nominated by the 25 board. The AMLI Defendants' evidence proves that, at a minimum, the Colorado Entities are shareholders of Prime, LLC. In order to further determine whether they are members of Prime, LLC, the court first looks to carefully read schedules and the the Fund Fund Operating Agreement. Operating amendments. 26 Agreement Although it The and contains court has its attached no explicit definition of "member" and few direct references to members as a class, the Fund Operating Agreement supports the AMLI Defendants' position that the Colorado Entities, as shareholders, are members. First, "the the preamble to the Fund Operating Agreement states that Electing Contractholders (as defined below) and Initial Subscribing Shareholders (as defined below) are being issued Shares (as defined [Prime, LLC] member of below) "27 [Prime, in and "Share" LLC] are being is defined as admitted as members of "an interest held by a representing a fractional portion of the interests of all members of [Prime, LLC] . " 28 A "Shareholder" is defined as "at any time, any Person who holds Shares and is at such time admitted to the Company as a member in accordance with the Id. ~ 26 (citing Pension Fund's Shareholder Consent and Political Subdivision's Consent Exhibits G & H to AMLI's Amended Motion to Dismiss, Docket Entry Nos. 72-7 and 72-8, respectively). 25 26 Docketed as Docket Entry Nos. 72-1 and 84-3. 27 Id. at 7 (emphasis added) . 28 Id. at 12 (emphases added) . -10- terms of th[e] records of Agreement and is shown as such on the books and LLC] . " 29 [Prime, Shareholder" "Non-Voting Share" and "Non-Voting are defined in reference to the foregoing terms. 30 Moreover, Article 11 of the Fund Operating Agreement dealing with transferability of shares "Admission of Members," includes Section 11. 10 entitled which describes the method by which "a Person may be admitted to [Prime, LLC] as a Shareholder." 31 TSquare responds that the citizenship of Prime, LLC does not determine the citizenship of the AMLI Defendants and that neither of the Colorado Entities is a member of Prime, LLC. First, TSquare asserts that the dispute over the AMLI Defendants' citizenship is based on information provided in the declaration of Lidia Novak and argues that statements the are declaration not is inadmissible based on her personal because knowledge. Novak's TSquare alleges that "Novak testified she has no personal knowledge of the organizational structure of the AMLI Defendants" declaration Freeman] 32 relied completely on and a conversation with documents [defense] and "that her prepared counsel. " 33 by [Gail TSquare cites the following deposition testimony: 29 Id. 30 Id. at 11. 31 Id. at 59-60. (emphasis added) . 32 Deposition of Lidia Novak ("Novak Deposition"), corporate secretary for Prime, LLC and for the fund investment advisor, Morgan Stanley Real Estate Adviser ("MSREA"), Exhibit A to Plaintiff's Response, Docket Entry No. 84-1, 33:21-34:8. 33 Plaintiff's Response, Docket Entry No. 83, p. 5. -11- Q: How often do you work with Gail? A: I would say in the course of a year, probably four or five times we have an occasion to communicate by e-mail. Q: Do you have any understanding of what her job duties are? A: Not specifically. Q: Do you work in combination with her any other time where you are relying on her work? A: Yes, over the course of a year, as I said, probably four or five times, yes. Q: In that particular context, what is that related to? A: It might be -- I might e-mail her and send her an organizational chart, which she maintains and I will ask her, is that the most current version of the document? And then she will tell me yes or she will provide something additional. Q: Do you know who drafted that document for Gail? A: I don't -- I'm assuming she did, but I don't really know. Q: So looking back at number 4, what you relied on for the knowledge that the principal office was located in Georgia and the sole member of PPF OPGP, LLC a Delaware limited liability company was based on an organizational chart; is that correct? A: Based on an organizational chart, my conversation with Braden and whatever information was contained was supported by documents that the that certificate and the knowledge that in that certificate fund maintains. Novak Deposition, Exhibit A to Plaintiff's Response, Docket Entry No. 84-1, 34:14-35:25. Before the above exchange, however, Novak gave the following testimony: Q: Your primary role is, is that fair to say, basically in the management, the investment or vice [sic] for the particular fund, Prime Property Fund? -12- A: It is right. all really related to Prime Property Fund, How long have you been in this position? Q: A: I have been with Morgan Stanley since November of 2003, so doing work since then. When did initiated? Q: Prime Property Fund begin; when was it A: It became an LLC on June 30th, 2004. And you have been assigned to Prime Property Fund since the beginning? Q: A: Yes. Q: Fabulous. [Declaration paragraph] Number 4 says, "The Fund, with its principal office located in Georgia, is the sold [sic] member of PPF OPGP, LLC, a Delaware limited liability company ("OPGP") ." Where did you get that information? A: I relied on my knowledge of AMLI in general, organizational charts that I have seen throughout the course of my daily work and I also relied on the secretary certificate that contains this information and I consulted with our in-house counsel Braden Wilhelm. Id. at 7:4-21; 32:19-33:8. Contrary to TSquare's assertion, Novak's deposition testimony shows that she relied on her personal knowledge along with organizational charts maintained by Freeman in her capacity as corporate secretary. Nothing in Novak's Deposition, which the court has read in its entirety, suggests that Novak lacked personal knowledge of the facts in her declaration, she may have consul ted corporate -13- despite the fact that documents or counsel before signing the declaration under penalty of perjury. 34 Moreover, the court need not rely solely on Novak's Declaration because TSquare attached a similar description of the AMLI Defendants' corporate structure to its Amended Complaint without qualification. 35 TSquare further asserts that "[Prime, LLC] is not a party to this case or even a member or partner in any AMLI Defendant." 36 That fact is irrelevant. The court must apply its citizenship analysis through as many organizational layers as necessary to accurately determine the citizenship of the evidence before the court proves that Prime, defendants. The LLC is the limited partner of PPF OP, LP, which is the sole member of PPF Multifamily, LLC, which is in turn the sole member of PPF AMLI Acquisition LLC, the sole member of defendant AMLI LLC and a limited partner of defendant AMLI L.P. TSquare next argues that the Pension Association is not a member of Prime, declaration of J. LLC. First, Scott Simon, Pension Association. TSquare cites to the sworn Chief Investment Officer of the Simon declares: The Association does not hold or possess stock certificates or membership instruments in [Prime, LLC]. 34 Considering the complexity of the alleged organizational structure, Novak's need to refresh her recollection regarding its details from a source she personally knows to be reliable is understandable. 35 See supra notes 10-11 and accompanying text. 36 Plaintiff's Response, Docket Entry No. 83, p. 4. -14- The Association is not a shareholding member or managing member of [Prime, LLC]. The Association does not participate in the management of [Prime, LLC] . The Association does not receive and has never received an annual K-1 tax form specific to the Association from or in connection with [Prime, LLC] . Declaration from Fire and Police Pension Association of Colorado ("Simon Declaration"), Exhibit B to Plaintiff's Response, Docket Entry No. 84-2, p. 1. TSquare argues that Simon's Declaration and the fact that (i) no investor has a direct ownership in the fund's assets and (ii) "the Manager of Prime Property Fund, LLC has exclusive power and authority over the investments of the company" indicate that Prime, LLC's shareholders are "merely" investors in "an investment fund held by Prime Property Fund, LLC." 38 At best, testimony. the Simon Declaration sets up dueling investor Simon declares that the Pension Association is "not a shareholding member" of Prime, LLC. 39 But Tom Connell, administrator of the Aurora Plan, refused to sign an identically worded declaration 40 deposition. 41 and testified to the contrary at his Connell testified that he understood that the Aurora Plan owns shares in an actual limited liability company as opposed 38 Id. at 5-6. 39 Simon Declaration, Exhibit B to Plaintiff's Response, Docket Entry No. 84-2. 40 AMLI's Amended Motion to Dismiss, Docket Entry No. 71, p. 17 28 (citing Deposition of Tom Connell ("Connell Deposition"), Exhibit B to AMLI' s Amended Motion to Dismiss, Docket Entry No. 72-2, 73:6-74:11). ~ 41 Connell Deposition, Exhibit B to AMLI's Amended Motion to Dismiss, Docket Entry No. 72-2, 55:4-56-5. -15- to a mere investment vehicle. 42 deposition 43 prove little, The conflicting declaration and however, because neither investor purported to have sufficient expertise -- legal or otherwise -- to resolve the parties' dispute over the membership status of the Colorado Entities. TSquare's arguments regarding the management and ownership of Prime, LLC's assets are not persuasive. The signed consent form from each of the Colorado Entities consenting to the election of the Independent Directors undermines TSquare' s assertions shareholders have no role in the management of Prime, assuming arguendo that creatures of state law, 44 TSquare is correct, because LLC. LLCs that But are and because Prime, LLC was formed under Delaware law, the court looks to the law of that state to determine whether members of LLCs are required to directly own assets or participate in management. The court has reviewed the Delaware Limited Liability Company Act, Del. Code tit. 6, §§ 18-101 et seq., and can find no support for the argument that members must directly 42Id. 43 The court notes, however, that only Connell's statements were subject to cross-examination. 44 J. William Callison and Maureen A. Sullivan, Limited Liability Companies: A State-by-State Guide to Law & Practice§ 1:1 Nature of limited liability company ( 2 016) (Westlaw) ( "LLCs are formed pursuant to various state limited liability company acts, which generally set forth a series of default rules that govern LLC operation and governance unless the members' operating agreement specifies particular rules."). -16- own an LLC's assets or exercise control over the company. contrary, To the Delaware law provides for multiple classes of members with varying rights. 45 Finally, TSquare argues that "Prime Property Fund, LLC" refers to both an actual LLC and an "investment vehicle" of the same name created by the LLC. 46 TSquare offers three arguments for why the Pension Fund holds shares in this alleged investment fund rather than the LLC itself. First, TSquare alleges that the Pension Fund "generally does not own shares in the companies that hold[] manage[] the investment funds. " 47 explanation that Prime, and Second, TSquare asserts without LLC's election to be treated as a real estate investment trust ( "REIT") for federal tax purposes indicates that the Pension Fund is "merely an investor in a fund managed and held by [Prime, LLC] and not a member of [Prime, LLC] ." 48 Finally, TSquare argues that the Pension Fund does not appear to be a member or owner of Prime, LLC because it does not have share certificates. TSquare's arguments are not convincing. First, the typical structure of the Pension Fund's other investments has no bearing on how Prime, LLC is reasoning, and the structured. court Second, can think of TSquare has offered no none, to support 45 Id. at 46 Plaintiff's Response, Docket Entry No. 83, p. 6. 47 Id. at 7. § 18-302 (a). 4Bid. -17- the assertion that Prime, LLC's REIT election for federal tax purposes is evidence of the existence of a distinct investment vehicle. Third, as evidenced by the Fund Operating Agreement 49 and affirmed by deposition testimony, 50 Prime, LLC is uncertificated, and thus no shareholder possesses share certificates. Finally, because neither the Fund Operating Agreement nor its attachments make any mention of a distinct investment vehicle like the one hypothesized by TSquare, the court can find no evidence to support TSquare's allegations. The court finds that the Colorado Entities were shareholders of Prime, LLC, an LLC organized under Delaware law when this suit was filed. The court further finds that the Colorado Entities, as shareholders, are also members of Prime, LLC. concludes that Prime, LLC and, as a result, are citizens of Colorado. Colorado, The court therefore the Member Entities, Because TSquare is also a citizen of the parties are not completely diverse, and the court must dismiss this action for want of subject-matter jurisdiction. 51 49 Fund Operating Agreement, Docket Entry No. 84-3, p. 16 § 3.02 ("All Shares issued hereunder shall be uncertificated unless otherwise determined by the Manager in its discretion."). 50 Novak Deposition, Exhibit A to Plaintiff's Response, Docket Entry No. 84-1, 17:4-7. 51 At least one of the Member Entities is a necessary party. Dismissal of the non-diverse parties pursuant to Federal Rule of Civil Procedure 21 would therefore not be appropriate. -18- J I t III. Conclusions and Order For the reasons explained above, the court concludes that TSquare has failed to meet its burden to establish that the AMLI Defendants are completely diverse. Accordingly, the AMLI Defendants' Amended Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Docket Entry No. 71) is GRANTED. SIGNED at Houston, Texas, on this lOth day of February, 2017. UNITED STATES DISTRICT JUDGE -19-

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