1
3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Plaintiff in pro per
2
5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13
James Alan Bush,
Case No. 08-cv-01354 LHK
14
Plaintiff,
15
v.
NOTICE OF MOTION TO COMPEL CLERK TO PERFORM DUTY
16
Sunnyvale Department of Public Safety, et al.,
17 18
Defendants.
Hearing Date: Hearing Time: Courtroom: Judge:
April 21st, 2012 1:30 P.M. 8 Lucy H. Koh
NOTICE OF MOTION TO COMPEL CLERK TO PERFORM DUTY
19 20
TO THE DEFENDANTS AND THEIR RESPECTIVE ATTORNEYS-OF-RECORD:
21
PLEASE TAKE NOTICE that on April 21st, 2012, at 1:30 P.M., in Courtroom 8
22
of the above-stated court, located at 280 South First Street, in San Jose,
23
Plaintiff, James Alan Bush, will, and hereby does, move for an order
24
directing that of clerk, Albert J. Younger, enter default against
25
Defendant, Long Thang Cao, pursuant to his duty as mandated by Rule 55(a)
26
of the Federal Rules of Civil Procedure.
27
This motion will be made on the grounds that the clerk has a duty to so NOTICE
PAGE 1 OF 2
08-cv-01354 LHK
1
act, and the plaintiff is beneficially interested and has no plain, speedy,
2
and adequate remedy in the ordinary course of law.
3
Dated: January 17th, 2012
4
By: X
5
James Alan Bush Plaintiff in pro per
6
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8
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9
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26 27 NOTICE
PAGE 2 OF 2
08-cv-01354 LHK
1
3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Plaintiff in pro per
2
5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13
James Alan Bush,
Case No. 08-cv-01354 PJH
14
Plaintiff,
MOTION TO COMPEL CLERK TO PERFORM DUTY
15
v.
[Fed. R. Civ. P., 7(b), 55(a), 78(a)]
16
Sunnyvale Department of Public Safety, et al.,
17 18
Defendants.
RELIEF SOUGHT
19 20
Judge Lucy H. Koh
Plaintiff, James Alan Bush, brings this motion for an order compelling
21
the Clerk, Albert J. Younger, to perform his duty as mandated by Rule 55(a)
22
of the Federal Rules of Civil Procedure. The specific action sought to be
23
compelled is the entry of default by clerk against Defendant, Long Thang
24
Cao, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. GROUNDS FOR RELIEF
25 26 27
As is more fully shown in the supporting memoranda and declaration of the plaintiff, good cause exists for such an order because: MOTION
PAGE 1 OF 4
08-cv-01354 LHK
1
1. Albert J. Younger (hereinafter “clerk”), is a clerk of this Court,
2
having the duty to perform the act sought to be compelled by this
3
motion.
4
2. Plaintiff, James Alan Bush (hereinafter “plaintiff”), has a clear
5
and beneficial right to the performace of that act, and has no plain,
6
speedy, or adequate remedy in the ordinary course of law.
7
3. Plaintiff performed all conditions precedent to the filing of the
8
request for entry of default, in that he served the defendant by a
9
Rule 4(d) notice and request for waiver of service via first-class
10
mail, as is authorized by Rule 4(d)(1)(G), and filed with this court the
11
executed waiver returned by the defendant [see Exhibit “A”]; also, per
12
Code of Civil Procedure §§ 415.30(a),(c), the plaintiff also sent to
13
the defendant a copy of the summons and complaint, an acknowledgement
14
of receipt and a return envelope, postage-prepaid, and a notice that
15
conforms to the exact wording set out in Code of Civil Procedure
16
§ 415.30(b), thereby constituting formal service of process under
17
Rules 4(e)(1) and (h)(1), which expressely authorizes service according
18
to any method authorized by state law in the judicial district in which
19
service is to be accomplished.
20
4. At the time the plaintiff submitted the request for entry of default,
21
the aforementioned defendant was in default, in that the defendant
22
executed the waiver and returned it within the 30 days allotted, and
23
failed to file a responsive pleading or otherwise defend against the
24
complaint within the requisite 60 days.
25
5. Upon filing the request for entry of default by clerk, the plaintiff
26
attached the executed waiver returned by the defendant, and included
27
a declaration by the plaintiff, stating that the defendant had not MOTION
PAGE 2 OF 4
08-cv-01354 LHK
1
answered or otherwise appeared in this action, as required per
2
Rule 7(a), and that the time within which the defendant may appear had
3
expired [see Exhibit “B”].
4
6. In spite of his clear, present and otherwise ministerial duty to enter
5
the default of the defendant by reason of Rule 55(a) of the Federal
6
Rules of Civil Procedure, the clerk has failed and/or refused to carry
7
out this duty to enter default as requested by the plaintiff by denying
8
the request without sufficient or plausible explanation provided in the
9
denial [see Exhibit “C”]. When asked by the plaintiff for the reason
10
for the denial, the clerk stated that the proof of service was invalid,
11
even though Rule 4(d)(4) of the Federal Rules of Civil Procedure
12
provides that the filing of an executed waiver supersedes the obligation
13
to file proof of service with the clerk of the court.
14
7. Plaintiff has attempted to obtain the reason for the denial from the
15
clerk prior to bringing this motion, as shown by the plaintiff’s letter
16
to the clerk [see Exhibit “D”], and has also attempted to obtain remedy
17
by letter to the presiding judge in this case, namely, the Honorable
18
Lucy H. Koh [see Exhibit “E”], to no avail.
19
8. It would be an injustice to deny the plaintiff’s request for entry
20
of default by clerk because the plaintiff has a clear, present, and
21
substantial right to the performance of the clerk’s duty, in that, as
22
a clerk of the United States District Court for the Northern District
23
of California, San Jose Division, the clerk is specially enjoined
24
by law, under the circumstances aforedescribed, to enter default as
25
prescribed by Rule 55(a) of the Federal Rules of Civil Procedure.
26
Furthermore, if default is entered, the defendant cannot challenge
27
the facts alleged in the complaint, and those facts can (and will) be MOTION
PAGE 3 OF 4
08-cv-01354 LHK
1
used to secure judgment against the remaining defendants; moreover,
2
an entry of default will allow the case to proceed to judgment against
3
the defendant, and a determination of damages can be made, without the
4
participation of the defendant.
5
9. There is no adequate remedy at law available to the plaintiff to avail
6
himself of this injustice, but by this motion to compel the clerk to
7
perform his duty to enter default against the defendant.
8
10. Defendant will not be prejudiced by the granting of this relief because
9
the plaintiff has moved promptly for the aforedescribed order, and has
10
otherwise acted with due diligence in seeking to resolve the wrongful
11
denial of the request for entry of default, in that this motion
12
followed as soon as all other avenues of recourse were exhausted.
13
In addition, the denial afforded the defendant additional time to
14
respond to the complaint or, at the very least, a reasonable belief
15
that additional time existed, and yet the defendant wasted this time,
16
failing to even attempt to research and investigate the claims made
17
therein, or to draft an answer or motion to dismiss in time to be filed
18
within the time that was, or that the defendant thought was, available. SUPPORTING PAPERS
19 20
This motion is based on this document, the Notice of Motion, the
21
accompanying declarations and memoranda, and the proposed order attached
22
to this motion, and on all of the pleadings and papers on file in this
23
action, and on whatever evidence and argument is presented at the hearing
24
on this motion.
25
Dated: January 17th, 2012
26
By: X
27 MOTION
PAGE 4 OF 4
James Alan Bush Plaintiff in pro per 08-cv-01354 LHK
1
3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Plaintiff in pro per
2
5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13
James Alan Bush,
Case No. 08-cv-01354 LHK
14
Plaintiff,
15
v.
DECLARATION IN SUPPORT OF MOTION TO COMPEL CLERK TO PERFORM DUTY
16
Sunnyvale Department of Public Safety, et al.,
17 18 19
Defendants.
[Fed. R. Civ. P., 7(b), 55(a), 78(a)]
Judge Lucy H. Koh
I, James Alan Bush, in support of the attached Motion to Compel Clerk
20
to Perform Duty, declare the followng:
21
1. I am fully competent to make this declaration, and I have personal
22
knowledge of the facts stated in this declaration.
23
2. On or before [date], I sent by first-class mail a copy of the summons
24
and complaint in this action to Defendant Long Thang Cao. I properly
25
served the summons and complaint on Defendant Cao on [date] under
26
the provisions of Rule 4 of the Federal Rules of Civil Procedure and
27
certified that fact to this Court in a proof of service dated [date]. MOTION
PAGE 1 OF 4
08-cv-01354 LHK
1
The proof of service was duly filed with this Court on [date], and
2
a file-stamped copy of the proof is attached to this declaration as
3
Exhibit “A”.
4
3.
5 6
Defendant Cao has failed to serve and file an answer or
otherwise respond to the complaint. 4.
Under Rule 12(a) of the Federal Rules of Civl Procedure, the
7
time limit for responding to the complaint has now expired, and the time
8
for Defendant Cao has not been extended by any stipulation of the parties
9
or any order of the Court.
10
5.
Defendant Cao is not a minor or an incompetent person. I am
11
personally familiar with and have met with Defendant Cao within the past
12
[number] of [days, weeks, etc.]. I know that he is an adult and appears to
13
be capable of managing his own affairs.
14
6.
Defendant Cao is not in military service.
15
I declare under…
16 17
Dated: January 17th, 2012
18
By: X
19
James Alan Bush Plaintiff in pro per
20 21 22 23 24 25 26 27 MOTION
PAGE 2 OF 4
08-cv-01354 LHK
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MOTION
PAGE 3 OF 4
08-cv-01354 LHK
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MOTION
PAGE 4 OF 4
08-cv-01354 LHK
1
3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Plaintiff in pro per
2
5 6 7 8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13
James Alan Bush,
Case No. 08-cv-01354 PJH
14
Plaintiff,
15
v.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL CLERK TO PERFORM DUTY
16
Sunnyvale Department of Public Safety, et al.,
[Fed. R. Civ. P., 7(b), 55(a), 78(b)]
Defendants.
Judge Lucy H. Koh
17 18 19
I. INTRODUCTION
20
This memorandum is submitted in support of the motion of Plaintiff,
21
James Alan Bush, for an order compelling the Clerk, Albert J. Younger, to
22
perform his duty to enter default against Defendant, Long Thang Cao, in
23
this case. Without waiving his claim that the duty of the clerk to perform
24
this act is ministerial, and non-judicial, the plaintiff presents the
25
following grounds for granting such an order:
26
1. the service by waiver of service of summons on the defendant was
27
valid, and the the proof of service sufficient for the purposes of entry MEMORANDA
PAGE 1 OF 8
08-cv-01354 LHK
1
of default by clerk;
2
2. the request for entry of default was properly made by the plaintiff;
3
3. the defendant was in default at the time the request for entry of
4 5 6 7 8 9 10
default was made; 4. it it the ministerial duty of the clerk to enter default under the circumstances; 5. the plaintiff has a beneficial interest in the entry of default by clerk; and, 6. there will be no prejudice against the defendant by granting an order compelling the clerk to enter default.
11
II. ARGUMENT
12
A. AN ORDER SHOULD ISSUE TO COMPEL THE CLERK TO ENTER DEFAULT BECAUSE THIS
13
ACT IS MINISTERIAL, NOT DISCRETIONARY, AND RULE 55(a) OF THE FEDERAL
14
RULES OF CIVIL PROCEDURE CREATES A MANDATORY DUTY IN THE CLERK TO
15
PERFORM THIS ACT UNDER THE CIRCUMSTANCES
16
1. A motion is the proper remedy to correct the ministerial act of
17
the clerk. After demanding the performance of a ministerial act,
18
and a clerk’s subsequent refusal to perform it, a party may file
19
a Rule 7(b) motion for an order [see Wood v. Wood, 159 Tex. 350,
20
320 S.W.2d 807, 813 (1959); Operation Rescue–National v. Planned
21
Parenthood of Houston and Southeast Texas, Inc., 937 S.W.2d 60, 87
22
(Tex.App. Houston [14th Dist.] 1996), judgment affirmed as modified
23
in Operation Rescue–National v. Planned Parenthood of Houston
24
and Southeast Texas, Inc., 975 S.W.2d 546 (Tex.1998)]. Neither an
25
appeal nor a writ of mandate is appropriate in this case, in that
26
the clerk’s denial of an request for entry of default is not an
27
appealable order or judgment, and, in any case, a writ of mandamus MEMORANDA
PAGE 2 OF 8
08-cv-01354 LHK
1
is available only after all other remedies have been exhausted
2
(i.e., a letter of demand and a Rule 7(b) motion) [see In re
3
Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999); Walker v. Packer, 827
4
S.W.2d 833, 840–41 (Tex.1992).
5
2. The court is permitted to order entry of default. A court’s order
6
of entry of default is within its discretion [Marschhauser v.
7
Travelers Indem. Co. (1992, SD Fla) 145 FRD 605, 24 FR Serv 3d
8
1037, 6 FLW Fed D 602, 7 FLW Fed D 31]. Although Rule 55(a) implies
9
that default should be entered by clerk without application to the
10
court, this rule is not a limitation, and, the court, having power,
11
will grant a motion to enter default [United States use of Federal
12
Housing Administration v. Jackson (1938, DC Or) 25 F. Supp. 79]. A
13
court may enter an order of default, although it should be entered
14
by the clerk as a matter of course without any application to the
15
court provided a proper affidavit is filed [Fisher v. Taylor (1940, DC
16
Tenn) 1 FRD 448].
17
3. Entry of default is a ministerial act and performance of this duty
18
is mandatory. An act is mandatory when the law clearly spells out
19
the duty to be performed by an official with sufficient certainty
20
that nothing is left to the exercise of discretion [Anderson v. City
21
of Seven Points, 806 S.W.2d 791, 793 (Tex.1991)]. Clerk’s duty to enter
22
default is clearly defined by statute, and, in particular, by Rule
23
55(a) of the Federal Rules of Civil Procedure, which establishes
24
that any defendant failing to answer within the time required by
25
the statute, the clerk, upon the application of the plaintiff, is
26
required to enter the defendants’ default [see Providence Tool Co.
27
v. Prader (1867) 32 Cal 634, 91 Am Dec 598; see also Fed.R.Civ.P. MEMORANDA
PAGE 3 OF 8
08-cv-01354 LHK
1
55(a) (“When a party against whom a judgment for affirmative relief
2
is sought has failed to plead or otherwise defend, and that failure
3
is shown by affidavit or otherwise, the clerk must enter the party’s
4
default.”)]. The clerk, being the arm of the court and an officer
5
in whom the law reposes certain defined powers, in entering a
6
default, acts simply as the agent of the law in placing upon the
7
records of the court that which is already declared to be such by
8
statute. Hence, in cases falling with the statute, the clerk, as
9
such, having the power to enter default without judicial direction
10
or intervention, exercises a ministerial and not a judicial
11
function [see Graydon v. Thomas (1870) 3 Or 250; see also Landwehr
12
v. Gillette (1917) 174 Cal 654, 164 P 1018 (“It is, of course, well
13
settled that the authority given the clerk to enter default is, when
14
properly exercised, a ministerial one solely.”)].
15
B. DEFENDANT WAS IN DEFAULT AT THE TIME THE REQUEST WAS MADE
16
1. The time period within which the defendant may enter an appearance
17
has expired. A failure to serve an answer within twenty days after
18
being served with a summons and complaint, as required by FRCP
19
12(a)(1)(A), may result in entry of default under FRCP 55 [McMillen
20
v. J.C. Penney Co. (2002, DC Nev) 205 FRD 557].
21
Any party required to fails to timely file the required responsive
22
pleading “or otherwise defend” against a pleading seeking judgment
23
for affirmative relief against that party, the defendant ... [Fed. R.
24
Civ. P. 55(a)]. In most cases, the pleadings that require a responsive
25
pleading are complaints, counterclaims, cross-claims, and third-
26
party complaints.4 Thus, parties served with those pleadings must file
27
responsive pleadings, such as an answer to a complaint, a reply to a MEMORANDA
PAGE 4 OF 8
08-cv-01354 LHK
1
counterclaim, an answer to a cross-claim, or an answer to a third-
2
party complaint,5 or “defend� against those claims in some manner, or
3
suffer a default.6
4
C. SERVICE OF PROCESS WAS VALID AND PROOF OF SERVICE IS SUFFICIENT FOR
5
GRANTING A REQUEST FOR ENTRY OF DEFAULT BY CLERK
6
Service of process was valid and the proof of such service is sufficient
7
for the purposes of granting a request to enter default by clerk, in
8
that the plaintiff abided by the mandates governing service of process
9
prescribed by the Federal Rules of Civil Procedure and California state
10
law in all respects.
11
1. Defendant was served in conformance with Rule 4 of the Federal
12
Rules of Civil Procedure. Plaintiff served the defendant by notice
13
of lawsuit and request for waiver of service of summons in the
14
manner required by Rule 4(d)(1) of the Federal Rules of Civil
15
Procedure; the notice and waiver were modeled after Forms 5 and 6
16
of the Appendix of Forms to the Federal Rules of Civil Procedure.
17
2. Defendant was formally served with process under California state
18
law. Because the plaintiff intended to affect formal service of
19
process to the defendant by mail at the same time as requesting
20
a waiver of such, he sent not only the notice and waiver by first-
21
class mail, as is authorized by Rule 4(d)(l)(G), but also included a
22
summons and a copy of the complaint, along with a return envelope,
23
postage-prepaid. Formal service by this method is permissible per
24
Rule 4(e)(1) and (h)(1), which expressly authorize service according
25
to any method permitted by state law in the judicial district in
26
which service is to be accomplished. Under the law of the State of
27
California, and, in particular, California Code of Civil Procedure MEMORANDA
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08-cv-01354 LHK
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
ยง 415.30(a), (c), service of summons and complaint may be made by firstclass mail, but only if that service is accompanied by a notice that conforms to the exact wording set out in Code of Civil Procedure ยง 415.30(b), and by an acknowledgment of receipt and a postage-paid return envelope. Plaintiff modified the notice provided by Form 5 of the Appendix of Forms to the Federal Rules of Civil Procedure to conform to the aforestated statutory requirements. By returning an executed waiver, the defendant acknowledged that he received such notice, as well as the summons and complaint, and explicitly waived formal service. 3. A returned and executed waiver of service constitutes valid proof of service for the purposes of entry of default by clerk. Rule 4(d)(4) of the Federal Rules of Civil Procedure provides that the filing of an executed waiver supersedes the obligation to file proof of service with the clerk of the court, and that the summons and complaint is deemed served at the time of filing the waiver [Fed. R. Civ. P. 4(d)(4); Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 679-681 n.13 (N.D. Iowa 1995) (plaintiff effects proper service by filing waiver of service obtained from defendant)]; neither Rule 4(d)(4) nor Rule 55(a) differentiate between a executed waiver or a third-party return with respect to te validity of proof of service in the consideration of a request for entry of default by clerk. Furthermore, the defendant, by returning an executed waiver, acknowledges that he received notice of the pending suit and a summons and complaint, and that he explicitly waives formal service, his opportunity to defend against it his receipt of the notice of lawsuit and the 4. Late filing of proof of service does not invalidate the actual service
MEMORANDA
PAGE 6 OF 8
08-cv-01354 LHK
1
or preclude entry of default for failure to file valid proof of
2
service. Per Rule 4(l)(3), a failure to promptly file proof of service
3
neither detracts from validity of that service, nor excuses the
4
defendant from appearing and answering or otherwise pleading to
5
complaint [O’Brien v Sage Group (1991, ND Ill) 136 FRD 151, 19 FR
6
Serve 3d 1039, mod on other grounds, motion den (1992, ND Ill) 141
7
FRD 81 and affd (1993, CA7 Ill) 998 F2d 1394, 26 FR Serv 3d 251].
8
(the executed waiver of service was returned promptly after the
9
second request
10
D. PLAINTIFF’S REQUEST FOR ENTRY OF DEFAULT WAS PROPERLY MADE PER RULE
11
55(a) OF THE FEDERAL RULES OF CIVIL PROCEDURE
12
Rule 55(a) calls for submission of an affidavit or other proof
13
establishing that a party has been served with summons and complaint
14
or other pleading seeking affirmative relief, and has failed to file
15
a responsive pleading “or otherwise defend” the action within the
16
applicable time limit. This proof, which is not required to be served
17
on the defaulting party, supports entry of an order of default.
18
E. THE COURT SHOULD GRANT THIS MOTION BECAUSE THE PLAINTIFF HAS NO
19
ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW
20
The Court should issue an order to compel the clerk to enter default
21
because there is no ad
22
F. PLAINTIFF HAS A BENEFICIAL INTEREST IN THE ENTRY OF DEFAULT
23
Under federal rules, the defaulting defendant loses many of the
24
rights of the party, such as the right to present evidence on issues
25
other than unliquidated damages, and the right to contest factual
26
allegations made in the complaint; thus, by defaulting, the defendant
27
can reasonably be regarded as having given up most of the benefits that MEMORANDA
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08-cv-01354 LHK
1
status as that party confers [Blazek v. Capital Recovery Assocs. (2004,
2
ED Wis) 222 FRD 360].
3
G. THIS MOTION HAS BEEN PROMPTLY MADE
4
Plaintiff has acted with due diligence in seeking an order to compel
5
the clerk to enter default against the defendant, in that this motion
6
immediately followed the plaintiff’s correspondence to the clerk and
7
the Court, notifying them of the erroneous denial of the request for
8
entry of default by clerk. The declaration of the plaintiff shows that,
9
immediately upon the denial of the request for entry of default by
10
clerk that is the subject of this motion,
11
Dated: January 17th, 2012
12
By: X
13
James Alan Bush Plaintiff in pro per
14
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//
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//
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//
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//
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//
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//
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//
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//
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//
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//
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//
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// MEMORANDA
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