Groves v. Farthing, et al., No. 2:2015cv00722 - Document 21 (E.D. La. 2015)
Court Description: ORDER denying 3 Motion to Remand to State Court; denying 10 Motion for Leave to Conduct Deposition. Signed by Judge Susie Morgan. (bwn)
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Groves v. Farthing, et al. Doc. 21 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A JACQU ELIN E GROVES Plain tiff CIVIL ACTION VERSU S N O. 15-72 2 JON ATH AN PAU L FARTH IN G, e t al. SECTION "E" D e fe n d an ts ORD ER Before the Court are two m otions: (1) a m otion to rem and to state court filed by Plaintiff J acqueline Groves 1 and (2) a m otion for leave to conduct a deposition related to the pending m otion to rem and filed by Defendants Am ica Mutual Insurance Com pany and Am ica General Agency, LLC (“Am ica”).2 For the following reasons, both m otions are D EN IED . BACKGROU N D On February 13, 20 15, Plaintiff J acqueline Groves filed a petition for dam ages in Orleans Parish Civil District Court alleging she suffered severe injuries, including but not lim ited to a fractured pelvis and a traumatic brain injury, after Defendant J onathan Paul Farthing, an uninsured driver operating a m otorcycle, struck Plaintiff while she was riding a bicycle.3 Plaintiff nam ed Farthing and Am ica, Plaintiff’s alleged uninsured/ underinsured m otorist insurance coverage provider, as defendants.4 On March 5, 20 15, Am ica filed a notice of rem oval in the U.S. District Court for 1 R. Doc. 3. R. Doc. 10 . 3 R. Doc. 1-3, pp. 3– 6. 4 Id. 2 1 Dockets.Justia.com the Eastern District of Louisiana, invoking the Court’s subject-m atter jurisdiction based on diversity of citizenship. 5 On April 2, 20 15, Plaintiff filed a m otion to rem and the case to Orleans Parish Civil District Court,6 and Am ica filed a m otion on April 29, 20 15 for leave to conduct a deposition related to the m otion to rem and.7 LAW AN D AN ALYSIS Federal courts are courts of lim ited jurisdiction and possess only the authority conferred upon them by the United States Constitution or by Congress.8 Federal law allows for state civil suits to be rem oved to federal courts in certain instances. 9 Generally, rem oval jurisdiction is governed by 28 U.S.C. § 1441(a), which provides: Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, m ay be rem oved by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.10 In this case, Am ica invoked the Court’s diversity jurisdiction when rem oving this action to federal court.11 Section 1441(b)(2) lim its rem oval jurisdiction in diversity cases. When rem oval is based on diversity jurisdiction, the action “m ay not be rem oved if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”12 This lim itation is often referred to as the “forum defendant rule.”13 The Fifth Circuit has held that failure to comply with the forum defendant rule renders rem oval procedurally defective rather than jurisdictionally 5 R. Doc. 1. R. Doc. 3. 7 R. Doc. 10 . 8 How ery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 20 0 1). 9 See 28 U.S.C. § 1441. 10 28 U.S.C. § 1441(a). 11 R. Doc. 1. 12 28 U.S.C. § 1441(b)(2). 13 See In re 1994 Exxon Chem . Fire, 558 F.3d 378, 391 (5th Cir. 20 0 9). 6 2 defective.14 Thus, to determ ine whether rem oval is proper when original jurisdiction is based on diversity and a forum defendant is nam ed, the Court m ust undertake a twostep analysis: (1) jurisdictionally, the parties m ust be com pletely diverse and the am ount-in-controversy requirem ent m ust be m et, and (2) procedurally, no nam ed defendants served prior to rem oval m ay be citizens of the forum state. In this case, the first prong clearly is satisfied. Diversity jurisdiction exists as the parties are com pletely diverse and the am ount-in-controversy requirem ent is m et. 15 Plaintiff argues, however, the Court m ust rem and this case for failure to satisfy the second prong of the test because Defendant Farthing is a citizen of Louisiana—the forum state—and he was served prior to rem oval.16 Thus, to conclude whether the second prong of the test is m et, the Court m ust determ ine (1) when the case was rem oved to federal court, and (2) whether Farthing was served prior to that tim e. When Was the Case Rem oved to Federal Court? Under 28 U.S.C. § 1446(a), defendants seeking to rem ove a civil action from state court m ust file in the federal district court “a notice of rem oval . . . containing a short and plain statem ent of the grounds for rem oval, together with a copy of all process, pleadings, and orders served upon such . . . defendants in such action.”17 Section 1446(b) 14 Id. at 396. The parties do not dispute that there is com plete diversity—Plaintiff is a citizen of Colorado, Defendant Farthing is a citizen of Louisiana, and the Am ica Defendants are citizens of Rhode Island—or that the am ount-in-controversy requirem ent is m et. See R. Doc. 1, pp. 2– 3; R. Doc. 3– 1, pp. 2– 3. 16 R. Doc. 3-1, pp. 3– 4. Plaintiff further argues: “Given the undisputed citizenship of the parties to this action, Am ica, as the rem oving defendant, cannot possibly satisfy the burden of showing the propriety of diversity jurisdiction. . . . [R]em oval of a diversity action is barred when a defendant such as Farthing is a citizen of the forum state.” Id. However, this is a confusion of the jurisdictional and procedural requirem ents for rem oval in this case. See W illiam s v. AC Spark Plugs Div. of Gen. Motors Corp., 985 F.2d 783, 787 (5th Cir. 1993) (stating the presence of an in-state defendant is “not a problem of subject m atter jurisdiction”). In reality, Plaintiff’s argum ent is not that the Court lacks subject-m atter jurisdiction but that rem oval was im proper under the forum defendant rule. 17 28 U.S.C. § 1446(a). 15 3 provides the tim e period during which a notice of rem oval m ust be filed and further states that “[w]hen a civil action is rem oved solely under section 1441(a), all defendants who have been properly joined and served m ust join in or consent to the rem oval of the action.”18 Most im portantly for our purposes, § 1446(d) provides: Prom ptly after the filing of such notice of rem oval of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the rem oval and the State court shall proceed no further unless and until the case is rem anded.19 Am ica argues this case was rem oved on March 5, 20 15 at 1:21 p.m . when the notice of rem oval was filed in the federal district court.20 Attached to the notice of rem oval is a “Certificate of Com pliance with Requirem ent to Give Notice of Rem oval” in which Am ica certifies that, in com pliance with 28 U.S.C. § 1446(d), a copy of the notice of rem oval had been filed with the clerk of the state court prior to the filing with this Court and written notice of the rem oval also had been given to all parties in the action.21 Plaintiff does not dispute that by March 5, 20 15 at 1:21 p.m . the notice of rem oval had been filed in federal court and a copy of the notice of rem oval had been filed with the clerk in state court.22 Plaintiff argues this case was not rem oved until March 10 , 20 15, the day when her attorney received written notice of rem oval in the m ail, because only then did rem oval becom e effective.23 Plaintiff states: “The Fifth Circuit has interpreted 28 U.S.C. § 18 28 U.S.C. § 1446(b)(2)(A). 28 U.S.C. § 1446(d). 20 R. Doc. 15, p. 2. 21 R. Doc. 1-2, p. 1. 22 Although the certification also states that written notice had been given to all parties at the tim e the notice of removal was filed, Plaintiff contends she did not receive written notice until March 10 , 20 15. 23 R. Doc. 20 , p. 5 (stating “it is undisputed in this particular case that Farthing was a properly ‘joined and served’ forum -defendant five full days before the removal took effect on March 10 , 20 15”). 19 4 1446(d) to m ean that rem oval is not effective until the rem oving defendant has taken the three distinct steps required by 28 U.S.C. § 1446(d).”24 For this reason, Plaintiff asserts this case was not removed until (1) the notice of rem oval was filed with federal court, (2) a copy of the notice of rem oval was filed with the clerk of the state court, and (3) written notice of rem oval was received by Plaintiff on March 10 , 20 15. Plaintiff cites only one case, Stephens v. Portal Boat Co., to support her contention that 28 U.S.C. § 1446(d) requires all three steps be com pleted, including the requirem ent that written notice of rem oval be given to all adverse parties, before rem oval is effected.25 But the validity of the rem oval from state court to federal court was not being challenged in Stephens. Instead, the appeal involved a district court’s dism issal on jurisdictional grounds of a state taxpayer’s action challenging the im position of certain state taxes. 26 The Fifth Circuit in Stephens affirm ed the district court’s dism issal for lack of jurisdiction.27 The Fifth Circuit m entioned in its recitation of the facts that Portal did not advise the state court of the rem oval and com m ented in a footnote that the appellant’s contention the state court had lost jurisdiction by virtue of the rem oval “was erroneous; a rem oval is not effective until notice is given to the state court.”28 Whether the state court had received notice of the removal at the tim e the notice of rem oval was filed in federal court is not in dispute in the case now before the Court. Instead, the issue in the instant case is whether a rem oving defendant m ust also give written notice of rem oval to all adverse parties before the rem oval is effective. This 24 Id. (citing Stephens v. Portal Boat Co., 781 F.2d 481 (5th Cir. 1986)). Id. (citing 781 F.2d 481). 26 781 F.2d at 481– 82. 27 Id. at 482– 83 (stating “[t]he district court’s disposition was clearly correct. The federal courts have been correctly circum scribed in exercising jurisdiction over state tax disputes, by virtue of § 1341”). 28 Id. at 482 n.1 (citing Dukes v. South Carolina Insurance Co., 770 F.2d 545 (5th Cir. 1985); C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure, Jurisdiction § 3737 (1985)). 25 5 issue is not addressed in Stephens. This Court’s research has not revealed any Fifth Circuit case law on point. Indeed, district courts around the country appear divided on this issue.29 Som e courts in this district have cited two Fifth Circuit cases, Murray v. Ford Motor Co. and Butler v. King, for the proposition that all three elem ents of § 1446(d) m ust be m et before rem oval is effected,30 but this is not the true holding of either Murray or Butler.31 Neither was the precise issue facing this Court, whether written notice m ust also be given to adverse parties before rem oval is effected, squarely presented in those cases. Instead, m ost cases have focused on the tim e when state courts are divested of jurisdiction and federal 29 There appears to be a split in the district courts concerning whether (1) rem oval does not actually take place until all three elements in § 1446(d) are accom plished, as Plaintiff claim s, (2) rem oval is effective from the tim e the notice of rem oval is filed with the federal court and the later com pletion of the other two requirem ents operates to perfect the rem oval and vest subject-m atter jurisdiction in the federal court as of the earlier date, or (3) rem oval is effective and jurisdiction is vested in the federal court once the notice of rem oval is filed with the federal court and the state court has actual or constructive notice of rem oval, and the requirement to give prom pt notice of rem oval to adverse parties is a procedural requirem ent with which failure to com ply could m ake rem oval im proper and rem and warranted. See 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3736 (4th ed. 20 15) (stating “rem oval is effected by the defendant taking three procedural steps: filing a notice of removal in the federal court, filing a copy of this notice in the state court, and giving prom pt written notice to all adverse parties” but also stating “[s]ome cases hold that rem oval is effective from the tim e the notice of rem oval is filed with the federal court, and that the later com pletion of the other steps operates to vest subject-m atter jurisdiction in the federal court as of the earlier date”); see also Lang v. Mattison, No. 13-0 38, 20 13 WL 210 3145, at *2 (E.D. Ky. May 14, 20 13) (stating “[a]s an initial matter, the Court m ust address whether this action should be rem anded because the defendants failed to perfect rem oval in accordance with 28 U.S.C. § 1446”); Tolson v. Prim erica Corp., No. 89-3557, 1991 WL 83136, at *1 (D. Md. May 20 , 1991) (stating “removal was not perfected, however, until J anuary 12, 1990 , when Defendant filed a copy of its notice of removal with the state court”). 30 See, e.g., Crutchfield v. Sew erage & W ater Bd. of New Orleans, No. 13-480 1, 20 13 WL 61850 29, at *2 (E.D. La. Nov. 25, 20 13) (Berrigan, J .) (stating “[r]em oval is perfected once the rem oving party serves notice on all adverse parties and the state court”); Adam s v. Horton Archery L.L.C, No. 12-2361, 20 13 WL 139878, at *2 (E.D. La. J an. 10 , 20 13) (Lem m on, J .) (stating “[i]n this case, the defendants have not provided any written notice of the rem oval to plaintiff as is required by § 1446(d). Therefore, they have not perfected their rem oval, and this case will be rem anded”). 31 In Murray v. Ford Motor Co., an appeal to the Fifth Circuit involving the tim ing of rem oval, the state court and opposing counsel both had knowledge of the rem oval petition at the tim e the order in question was issued and rem oval was found to have been perfected. See 770 F.2d 461, 463 (5th Cir. 1985). Additionally, in Butler v. King, the Fifth Circuit stated the § 1446 requirem ent that a copy of the rem oval petition be filed in the state record was satisfied and rem oval was effected, but the court was not faced with the question of whether rem oval would still have been effective if all adverse parties had not been given written notice of removal. 781 F.2d 486, 48 8 (5th Cir. 1986). These cases are not on point. 6 courts are vested with exclusive jurisdiction based on the tim ing of the state court’s actual or constructive notice of rem oval.32 Section 1446(d) requires only that the removing defendant give written notice to adverse parties “prom ptly after” filing a notice of rem oval in federal court—there is no specific tim e period provided in the statute.33 Prom pt written notice is a procedural requirem ent under § 1446(d), and courts may rem and an action if prom pt written notice has not been given to all adverse parties. Courts look to the circum stances in a particular case to determ ine whether there was undue delay in notifying all adverse parties.34 In this case, Plaintiff has not alleged that the written notice of rem oval was unduly delayed or never received.35 Rather, Plaintiff adm its her attorney received notice by certified m ail five days after the notice of rem oval was filed.36 Because prom pt written notice of rem oval was given, this procedural requirem ent has been m et and rem and of this action is not warranted on this ground. Am ica filed the notice of rem oval in federal court on March 5, 20 15 at 1:21 p.m ., 32 The Fifth Circuit has held that once the state court receives actual or constructive notice of rem oval, the state court is divested of jurisdiction and the federal court is vested with exclusive jurisdiction. See Murray , 770 F.2d at 463 (“In Medrano v. Texas, 580 F.2d 80 3, 80 4 (5th Cir. 1978), we held that the state court continues to have jurisdiction until it has been given actual or constructive notice of rem oval.” (em phasis added)). Although the language in § 1446(d) states a copy of the notice of rem oval shall be filed with the clerk of the state court, “[t]he Fifth Circuit has interpreted Section 1446 as ending a state court’s jurisdiction once the state court has actual or constructive notice of the rem oval.” Rouege Trucking, LLC v. Canales, No. 14-30 4, 20 15 WL 127870 , at *4 (M.D. La. J an. 7, 20 15) (em phasis added) (citing Medrano v. Texas, 580 F.2d 80 3 (5th Cir. 1978); Adair Pipeline Co. v. Pipeliners Local Union , 325 F.2d 20 6 (5th Cir. 1963)). 33 See 14C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3735 (4th ed. 20 15) (“Although all adverse parties m ust be given actual notice, no particular tim e for doing so is specified in the removal statute. Thus, written notice to the adverse parties need not be com pleted before expiration of the time for rem oval. This liberality breaks with the form er practice, which required the adverse parties to be given written notice before the verified rem oval petition (now the notice of rem oval) was filed with the court.”). 34 See Brister v. Jolly , No. 96-3741, 1997 WL 16633, at *1 (E.D. La. J an. 15, 1997) (citing Wright, Miller & Cooper, Federal Practice and Procedure, § 3736, at 548 (1985)). 35 See Adam s, No. 12-2361, 20 13 WL 139878, at *2. 36 Am ica also certifies in its notice of removal that written notice was given to all adverse parties. See R. Doc. 1-2. 7 and Am ica certifies that the state court had actual notice of the rem oval at that tim e. Plaintiff has not disputed this. The Court holds that receipt of written notice of the rem oval by all adverse parties was not required before the rem oval becam e effective. Thus, the Court finds this case was rem oved effective March 5, 20 15 at 1:21 p.m . When Was Farthing Served? Now that the tim e of rem oval has been determ ined, the rem aining issue is whether Farthing—the only forum defendant—was properly served prior to the rem oval. The forum defendant rule precludes rem oval “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”37 Plaintiff argues the tim e of day process was served on Farthing is irrelevant so long as service was m ade the sam e day as rem oval.38 Am ica’s opposition to Plaintiff’s m otion to rem and asserts that the deputy who served Farthing “has indicated verbally that he served Farthing in the evening of March 5, 20 15. However, [the Sheriff’s Office] will not allow the deputy to provide a sworn affidavit.”39 For this reason, Am ica filed a m otion for leave to conduct a discovery deposition in order to establish the exact tim e of service on Farthing.40 However, Plaintiff does not contest Am ica’s contention that Farthing was served on the sam e day but after the notice of rem oval was filed.41 Because the parties do not dispute that Farthing was served the evening of March 5, 20 15, after the notice of rem oval was filed 37 28 U.S.C. § 1441(b)(2) (em phasis added). R. Doc. 20 , pp. 4– 5. 39 R. Doc. 15, p. 3 n.2. 40 R. Doc. 10 . Am ica seeks to take a deposition of J efferson Parish Sheriff’s Office Departm ent of Process Servers. Id. 41 Rather, Plaintiff argues (1) the time of day process is served is irrelevant when determ ining whether a forum defendant was served prior to rem oval, so long as the forum defendant was served on the same day, and (2) even if time of day were relevant, removal took effect on March 10 , 20 15, five days after Farthing was served. R. Doc. 20 , pp. 4– 5. The Court already has rejected Plaintiff’s second argum ent. 38 8 in federal court and a copy was filed in state court, the deposition of the process server is unnecessary, and the m otion for leave to conduct the deposition is denied.42 In support of her argum ent that the tim e of day of service is irrelevant, Plaintiff points only to the Louisiana Code of Civil Procedure, which requires a sheriff’s return show the date and m ethod of service—but not the tim e of service.43 Plaintiff cites no case law to support her contention that for purposes of rem oval the tim e of service on the forum defendant is irrelevant so long as service was m ade the sam e day as the rem oval. On the other hand, Am ica cites a case holding that, even though a case was rem oved just three hours before a forum defendant was served, the m ere fact rem oval took place before service on the forum defendant was sufficient grounds for denying a m otion to rem and.44 As with any statutory question, the Court m ust begin with the language of the statute.45 “In determ ining a statute’s plain m eaning, [the courts are to] assum e that, absent any contrary definition, Congress intends the words in its enactm ents to carry their ordinary, contem porary, com m on m eaning.”46 The Court finds the statutory language of § 1441(b) is not am biguous. A forum defendant m ust be “joined and served” before removal in order for the forum defendant rule to preclude rem oval. It m akes no difference whether rem oval and service on the forum defendant occur on the sam e day. So long as rem oval is effected before service, the forum defendant rule will not preclude 42 R. Doc. 10 . Id., p. 4 (citing La. C. Civ. P. art. 1292). 44 See R. Doc. 15, p. 6; In re Yasm in & Yaz (Drospirenone) Mktg., Sales Practices & Relevant Products Liab. Litig., No. 0 9-20 0 0 3, 20 10 WL 3937414, at *11 (S.D. Ill. Oct. 4, 20 10 ) (“The [non-resident defendant] rem oved this action on May 1, 20 0 9 at 11:18 am . Plaintiffs served [the forum defendant] on May 1, 20 0 9 at 1:50 pm . Accordingly, this action was rem oved before the forum defendant was served. This fact, standing alone, is a sufficient ground for denying Plaintiff's m otion to rem and.” (citations om itted)). 45 Matter of Greenw ay , 71 F.3d 1177, 1179 (5th Cir. 1996). 46 Id. (internal quotation m arks and citation om itted). 43 9 rem oval. It is not this Court’s place to substitute its judgm ent for that of Congress when the plain m eaning of § 1441(b) com pels one conclusion. Farthing, the Louisiana defendant, was not properly joined and served at the tim e Am ica rem oved this action. Accordingly, § 1441(b) does not provide a procedural basis to rem and this action.47 Likewise, Farthing’s consent to rem oval was not necessary for rem oval because he had not yet been served.48 Plaintiff argues Am ica’s attem pts to circum vent the forum defendant rule should not be allowed because the concern of local bias is not an issue when a defendant is a citizen of the forum state, even when the forum defendant was served after rem oval.49 Notwithstanding Plaintiff’s persuasive policy argum ents, rem and would be contrary to the unam biguous language of § 1441(b) and would effectively read out the “and served” portion of the statute.50 This the Court will not do. Because Am ica com plied with the procedural requirem ents in § 1446, rem oval of 47 The Court recognizes the Plaintiff is being deprived of her original choice of forum m erely because Farthing was served a few hours after the notice of rem oval was filed. However, this result could have been prevented if Plaintiff had served the state court petition on Farthing, the forum defendant, first. Because Am ica had been served at the tim e of rem oval, the Court does not reach a decision as to whether rem oval would have been precluded had Am ica removed the case prior to any defendant being served. District courts are split on whether at least one defendant m ust be served before a case can be rem oved. See Hutchins v. Bay er Corporation, 0 8-640 , 20 0 9 Wl 192468 (D. Del. J an. 23, 20 0 9) (consolidating cases); How ard v. Genentech, 12-1153, 20 13 Wl 680 20 0 (D. Mass. Feb. 21, 20 13) (consolidating cases). 48 See Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N. Am ., 841 F.2d 1254, 1262 (5th Cir. 1988) (“[A]ll defendants who are properly joined and served m ust join in the rem oval petition, see Brow n v. Dem co, Inc., 792 F.2d 478, 481 (5th Cir. 1986), and that failure to do so renders the petition defective.” (em phasis added)). 49 R. Doc. 20 , p. 6. 50 See Harvey v. Shelter Ins. Co., No. 13-392, 20 13 WL 1768658, at *2 (E.D. La. Apr. 24, 20 13) (“The forum defendant rule codified in § 1441(b)(2) plainly provides that a civil action m ay not be rem oved if any defendant that has been joined and served is a forum defendant. But, here, at the tim e of rem oval, [the forum defendant] had not been served. The plaintiff is frustrated by this rule and com plains that [the forum defendant] ‘has been avoiding service in a forum shopping effort.’ But the plain language of the statute m ust prevail over the plaintiff's policy arguments to the contrary.”). Although the result m ay seem unreasonable, the Court does not find that following the plain m eaning of the statute produces an absurd result in clear violation of the intent of the drafters. See KCMC, Inc. v. F. C. C., 60 0 F.2d 546, 549 (5th Cir. 1979) (citing United States v. Am erican Trucking Associations, 310 U.S. 534, (1940 )); Zuni Pub. Sch. Dist. N o. 89 v. Dep’t of Educ., 550 U.S. 81, 93– 94 (20 0 7); see also Hutchins v. Bay er Corporation, 0 8640 , 20 0 9 WL 192468 (D. Del. J an. 23, 20 0 9). 10 the action from state court to federal court took place on March 5, 20 15 at 1:21 p.m ., before Farthing—the forum defendant—was served that evening. Based on a plain reading of § 1446, Am ica was not precluded from rem oving this action as the forum defendant Farthing was served after the case was rem oved. Accordingly, Plaintiff’s m otion to rem and based on the forum defendant rule m ust be denied. CON CLU SION IT IS ORD ERED that the m otion to rem and to state court filed by Plaintiff J acqueline Groves 51 is D EN IED . IT IS FU RTH ER ORD ERED that the m otion for leave to conduct a deposition related to the pending m otion to rem and filed by Defendants Am ica Mutual Insurance Com pany and Am ica General Agency, LLC52 is D EN IED . New Orleans, Louisiana, this 10th day of June, 20 15. __________________ ________ SUSIE MORGAN UNITED STATES DISTRICT J UDGE 51 R. 52 Doc. 3. R. Doc. 10 . 11
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