Opinion

Gooding v. Liberty Mutual Insurance Co.

Court
District Court, E.D. Louisiana
Filed
May 19, 2021
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAMES GOODING et al CIVIL ACTION

VERSUS CASE NO. 20-1133

LIBERTY MUTUAL INSURANCE CO. et al SECTION: “G” (3)

ORDER AND REASONS

This litigation arises from an alleged asbestos exposure that occurred while Decedent

James Grant Gooding (“Mr. Gooding”) was employed at various shipyards, including Avondale

Shipyard, between 1970 and 1979.1 Plaintiffs Martha Gooding, Helen Leupold, and Caroline

Pendergast (collectively, “Plaintiffs”) bring survival and wrongful death claims against numerous

defendants, alleging that asbestos exposure caused Mr. Gooding to contract malignant pleural

mesothelioma ultimately resulting in his death.2 Pending before the Court is the “Motion to

Enforce Stay and Notice of Liquidation and Statutory Stay” filed by Defendant Lamorak Insurance

Company (“Lamorak”).3 Also pending before the Court is the related “Motion to Sever Claims

against Lamorak Insurance Company” filed by Plaintiffs. 4 Considering the motions, the

memoranda in support and opposition, the record, and the applicable law, the Court stays and

administratively closes the instant action for a period of 6 months and denies Plaintiffs’ motion to

1 Rec. Doc. 1-1.

2 Rec. Doc. 210.

3 Rec. Doc. 495.

4 Rec. Doc. 449.

1

sever.

I. Background

On March 4, 2020, Mr. Gooding filed a petition for damages in the Civil District Court for

the Parish of Orleans, State of Louisiana.5 In the Petition, Mr. Gooding alleged that he contracted

mesothelioma from occupational exposure to asbestos while working for the American Bureau of

Shipping on the premises of various shipyards, including Avondale Shipyard, from 1970 to 1979.6

Mr. Gooding was diagnosed with mesothelioma in January 2020.7 Mr. Gooding passed away on

March 22, 2020, after which Plaintiffs, Mr. Gooding’s surviving heirs, were substituted as

plaintiffs in the survival action and filed wrongful death claims.8

On April 7, 2020, the Avondale Interests and Defendant Lamorak Insurance Company

removed the case to this Court pursuant to the federal officer removal statute 28 U.S.C. § 1442(a).9

Plaintiffs filed a first supplemental and amending complaint on April 23, 2020, substituting

Plaintiffs as parties-in-interest for Mr. Gooding, who passed away on March 22, 2020.10 Plaintiffs

filed a second supplemental and amending complaint on June 29, 2020.11 Plaintiffs filed a third

supplemental and amending complaint on January 7, 2021.12

5 Rec. Doc. 1-1 at 1.

6 Id. at 11.

7 Id. at 10.

8 Rec. Doc. 38.

9 Rec. Doc. 1.

10 Rec. Doc. 38.

11 Rec. Doc. 145.

12 Rec. Doc. 241.

2

On April 26, 2021, Plaintiffs filed the instant “Motion to Sever Claims Against Lamorak

Insurance Company.” 13 Lamorak opposes the motion. 14 Defendants Huntington Ingalls

Incorporated and Albert L. Bossier, Jr. (collectively, the “Avondale Interests”) also oppose the

motion.15 On May 4, 2021, Lamorak filed the instant “Motion to Enforce Stay and Notice of

Liquidation and Statutory Stay.”16 On May 11, 2021, Plaintiffs filed an “Opposition to Motion to

Stay and Memo in Support of Motion to Sever.”17 On May 14, 2021, with leave of Court, the

Avondale Interest filed a supplemental memorandum in opposition to Plaintiff’s motion to sever.18

Also on May 14, 2021, with leave of Court, Lamorak filed a reply memorandum in support of the

motion to enforce stay.19 Several other named defendants adopt the motion to stay and opposed

Plaintiffs’ motion to sever.20

II. Parties’ Arguments

A. Lamorak’s Motion to Stay

In the instant motion to stay, Lamorak asserts that it has been declared insolvent and placed

into liquidation.21 Specifically, Lamorak avers that Bedivere Insurance Company (“Bedivere”), a

13 Rec. Doc. 449.

14 Rec. Doc. 548.

15 Rec. Doc. 550.

16 Rec. Doc. 495.

17 Rec. Doc. 551.

18 Rec. Doc. 571.

19 Rec. Doc. 572.

20 Rec. Docs. 552; 553; 564; 565; 557; 561; 568.

21 Rec. Doc. 495-2 at 1.

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foreign insurance company that includes by merger Lamorak, was declared insolvent and placed

into liquidation on March 11, 2021 by Judge Brobson in the Commonwealth Court of

Pennsylvania.22 Lamorak points to the Liquidation Order issued by the Commonwealth Court of

Pennsylvania, which states:

All above-enumerated actions currently pending against Bedivere in the courts of

the Commonwealth of Pennsylvania or elsewhere are hererby stayed; relief sought

in these actions shall be pursued by filing a proof of claim against the estate of

Bedivere pursuant to Section 538 of Article V, 40 P.S. § 221.38.23

Lamorak urges the Court enforce the permanent stay of claims against Lamorak instituted by the

Commonwealth Court of Pennsylvania.24

Lamorak also urges the Court to enforce the automatic statutory stay of claims against

Lamorak and any party Lamorak is obligated to defend.25 Lamorak points to Louisiana Revised

Statute § 22:2068 (“La. R.S. 22:2068”) to argue that a statutory six month stay of claims against

Lamorak and any party it is obliged to defend is appropriate because Lamorak is an insolvent

insurer.26

The Avondale Interests, Eagle Inc., the McCarty Corporation, and Main Ironworks adopted

the arguments set forth in the motion to stay, asserting that they were all insured by Lamorak.27

22 Id.

23 Rec. Doc. 495-3 at 7.

24 Rec. Doc. 495-2 at 2.

25 Id.

26 Id. at 2–7.

27 Rec. Doc. 552; Rec. Doc. 553; Rec. Doc. 556-1; Rec. Doc. 557.

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B. Plaintiffs’ Opposition to Lamorak’s Motion to Stay and Plaintiffs’ Arguments in Support

of Severance

In opposition to Lamorak’s motion to stay, Plaintiffs do not set forth any arguments that

the case should not be stayed. However, in Plaintiffs’ separate motion to sever claims against

Lamorak, Plaintiffs assert that La. R.S. 22:2068 “is procedural in nature and not binding on this

federal court.”28

In opposition to Lamorak’s motion to stay, Plaintiffs instead request that the claims against

Lamorak and its insureds (the Avondale Interests and Main Iron Works) be severed.29 Plaintiffs

first assert that “severing the claims against the Avondale interests will avoid confusion with the

claims against the other shipyards.”30 Second, Plaintiffs contend that “[a]llowing the claims

against the non-Avondale defendants to go forward will expedite the proceedings as the Avondale

defendants cannot be part of a trial until at least September 2021.”31 Third, Plaintiffs argue that

severing the claims does not prejudice any defendants because all defendants have had the

opportunity to prepare their defenses and cross examine Plaintiffs’ expert witnesses.32 Finally,

Plaintiffs assert that the witness testimony and documentary proof that will be required in the

proposed severed cases will only be duplicative for the Plaintiffs.33

28 Rec. Doc. 449-1 at 1.

29 Rec. Doc. 551.

30 Id. at 2.

31 Id.

32 Id. at 3.

33 Id.

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C. The Avondale Interests’ Arguments in Opposition to Severance

In opposition to Plaintiff’s motion to sever, the Avondale Interests contend that severance

is inappropriate because Plaintiffs’ claims against Lamorak and several other defendants, including

the Avondale Interests, arise from the same transaction or occurrence and involve common

questions of fact and law.34 The Avondale Interests further contend that severing the claims

against Lamorak will not promote settlement or judicial economy because the Court will be forced

to conduct two jury trials possibly resulting in inconsistent jury verdicts.35 The Avondale Interests

also note that “Plaintiffs claims against [the Avondale Interests] are inextricably intertwined with

the claims against Lamorak such that they cannot be settled separately.”36 In addition, the

Avondale Interests aver that severing the claims against Lamorak will result in undue prejudice to

the Avondale Interests and to Lamorak by hindering potential settlement negotiations and

increasing litigation costs for the Avondale Interests.37

III. Legal Standards

A. Legal Standard for a Motion to Stay

In Landis v. North American Co., the Supreme Court recognized that “the power to stay

proceedings is incidental to the power inherent in every court to control the disposition of the

causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”38

34 Rec. Doc. 550 at 3–5.

35 Id. at 5.

36 Id.

37 Id. at 6.

38 299 U.S. 248, 254 (1936).

6

The Supreme Court noted that “how this can best be done calls for the exercise of judgment, which

must weigh competing interests and maintain an even balance.”39 Therefore, a district court has

“discretionary power to stay proceedings before it in the control of its docket and in the interests

of justice.”40 Furthermore, a district court may exercise this discretionary power sua sponte.41

B. Legal Standard for a Motion to Sever

1. Legal Standard Under Rule 21

Motions to sever are generally governed by Federal Rule of Civil Procedure 21, which

provides that “any claim against a party may be severed and proceeded with separately.”42 This

Court has “broad discretion to sever issues to be tried before it.”43 Accordingly, a court’s decision

to sever a claim will be reviewed for abuse of discretion.44 Although courts have looked to Rule

20 for guidance in the absence of any standards in Rule 21,45 courts may sever claims even where

the requirements of Rule 20(a) for permissive joinder have been satisfied.46 To determine whether

a claim should be severed, a court may consider the following factors: (1) whether the claim arose

out of the same transaction or occurrence; (2) whether the claims present common questions of

law or fact; (3) whether settlement or judicial economy would be promoted; (4) whether prejudice

39 Id. at 254–55.

40 McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982).

41 See Begum v. Miner, 213 F.3d 639, at *1 n.1 (citing Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 737 n. 1

(5th Cir.1999) (“we have held that the district court may sua sponte stay a suit as a form of abstention.”)

42 Fed. R. Civ. P. 21.

43 Brunet, 15 F.3d at 505.

44 Acevedo, 600 F.3d at 520 (citing Jolley v. Welch, 904 F.2d 988, 994 (5th Cir. 1990)).

45 Id. at 521.

46 O’Neil, 709 F.2d 369.

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would be averted by severance; and (5) whether different witnesses and documentary proof are

required for separate claims.47 It is notable that the first two factors track the “two-prong test”

created by Rule 20, which permits joinder of plaintiffs when “(1) the claims arise out of the same

transaction, occurrence, or series of transactions or occurrences and when (2) there is at least one

common question of law or fact linking all claims.”48 Therefore, application of these five factors

accounts for whether joinder was appropriate, but it also allows for the exercise of judicial

discretion in instances where joinder was permissible but severance is warranted.

2. Legal Standard Under Rule 42(b)

Federal Rule of Civil Procedure 42 gives a district court discretion, “[f]or convenience, to

avoid prejudice, or to expedite and economize, ... [to] order a separate trial of one or more separate

issues, claims, crossclaims, counterclaims, or third-party claims.”49 The Fifth Circuit has

explained that:

The procedure authorized by Rule 42(b) should be distinguished from severance

under Rule 21. Separate trials will usually result in one judgment, but severed

claims become entirely independent actions to be tried, and judgment entered

thereon, independently. Unfortunately, this distinction, clear enough in theory, is

often obscured in practice since at times the courts talk of separate trial and

severance interchangeably.50

Some district courts in the Fifth Circuit apply the same considerations to Rule 21 requests

47 Vaz, 2006 WL 2583733, at *1 (citing Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 580

(S.D.N.Y. 1999)); Corkern, 2012 WL 2597561, at *2 (citing Kreger, 2011 WL 1594839, at *2).

48 Acevedo, 600 F.3d at 521 (citations omitted). Even when the test for joinder is satisfied, district courts

have the discretion to refuse joinder in the interest of avoiding prejudice and delay. Id. (citing Applewhite v.

Reichhold Chems, Inc., 67 F.3d 571, 574 (5th Cir. 1995)).

49 Fed. R. Civ. P. 42(b).

50 McDaniel v. Anheuser–Busch, Inc., 987 F.2d 298, 304 n. 19 (5th Cir.1993) (quoting 9 Wright & Miller,

Federal Practice and Procedure: Civil § 2387 (1971)).

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for severance and Rule 42(b) requests for separate trials.51 However, other district courts in the

Fifth Circuit find that “[t]he standards for separate trials and severance differ, and although both

consider prejudice to the parties to be a key factor . . . the application of Rule 42(b) involves

primarily the consideration of convenience and fairness, [while] that of Rule 21 also presupposes

basic conditions of separability in law and logic.”52

IV. Analysis

Lamorak moves the Court to stay the claims pending against Lamorak and its insureds.53

The Avondale Interests, Main Iron Works, Eagle Inc., and the McCarty Corporation represent that

they are insureds of Lamorak and therefore adopt the arguments set forth by Lamorak in the instant

motion to stay.54 Several other defendants also adopt the arguments set forth by Lamorak in the

motion to stay and in opposition to Plaintiffs’ motion to sever.55

Lamorak asserts that it was declared insolvent and placed into liquidation by the

Commonwealth Court of Pennsylvania on March 11, 2021.56 Lamorak urges this Court to (1)

enforce the permanent stay of claims against it initiated by the Commonwealth Court of

Pennsylvania; and (2) enforce the automatic statutory six-month stay of claims against it and any

51 Beechgrove Redevelopment, L.L.C. v. Carter & Sons Plumbing, Heating & Air Conditioning, Inc., No.

CIV.A. 07-8446, 2009 WL 382713, at *5 (E.D. La. Feb. 11, 2009) (Barbier, J.); see also Abrams v. Integrated Pro

Servs., LLC, No. CV 07-8426, 2015 WL 7458604, at *2 (E.D. La. Nov. 24, 2015) (Lemelle, J.) (“As the concepts of

convenience and fairness fall under the prejudice umbrella and are not inapposite to the concept of separability, this

Court finds no need to apply different standards.”).

52 Id. (quoting David v. M & E Food Mart, Inc., 1995 WL 55306, *1 (E.D. Tex. Jan. 31, 1995)).

53 Rec. Doc. 495-2 at 2.

54 Rec. Docs. 547; 549; 556-1; 557.

55 Rec. Docs. 552; 553; 564; 565; 557; 561; 568.

56 Id. at 1.

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party it is obligated to defend as set forth by La. R.S. 22:2068.57 La R.S 22:2068(A) provides:

All proceedings in which the insolvent insurer is a party or is obligated to defend a

party in any court in this state shall be stayed for six months and such additional

time as may be determined by the court from the date the insolvency is determined

to permit proper defense by the association of all pending causes of action.

In opposition, Plaintiffs briefly note that La. R.S. 22:2068 is procedural rather than substantive

and therefore not binding on this federal court proceeding.58

Plaintiffs devote the remainder of their briefing to urging the Court to sever the pending

claims against Lamorak.59 Plaintiffs contend that severance is proper pursuant to Rule 42 “and

any other Rule of Procedure that may be applicable.”60 In opposition, the Avondale Interests argue

that the Rule 21 factors weigh against severance in this case.61 In addition, Lamorak asserts that

“a severance should be accompanied with an Order staying the claims against Lamorak.”62

The Court first addresses Lamorak’s request for a stay of proceedings and then turns to the

issue of whether the claims against Lamorak and its insureds should be severed from the other

claims pending against several defendants in this litigation.

A. Lamorak’s Motion to Stay

Lamorak urges the Court to (1) enforce the permanent stay of claims against it initiated by

the Commonwealth Court of Pennsylvania; and (2) enforce the automatic statutory six-month stay

57 Id.

58 Rec. Doc. 449-1 at 1.

59 Id.; Rec. Doc. 551.

60 Rec. Doc. 449-1 at 1.

61 Rec. Doc. 550 at 3.

62 Rec. Doc. 548 at 2.

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of claims against it and any party it is obligated to defend as set forth by La. R.S. 22:2068.63 La

R.S 22:2068(A) provides:

All proceedings in which the insolvent insurer is a party or is obligated to defend a

party in any court in this state shall be stayed for six months and such additional

time as may be determined by the court from the date the insolvency is determined

to permit proper defense by the association of all pending causes of action.

In opposition, Plaintiffs briefly note that La. R.S. 22:2068 is procedural rather than substantive

and therefore not binding upon this Court sitting in diversity.64

Fifth Circuit precedent holds that “insolvent insurers are subject to the comprehensive

oversight of state administrative agencies and courts” and “[f]ederal law consigns to the states the

primary responsibility for regulating the insurance industry.”65 Accordingly, the Fifth Circuit in

Clark v. Fitzgibbons held that “allowing a creditor or claimant to proceed against an insolvent

insurer in federal court while a state insolvency proceeding is pending would usurp [the state’s]

control over the liquidation proceeding by allowing [the claimant] to preempt others in the

distribution of [the insurance company’s] assets.”66 The Fifth Circuit, relying on the full faith and

credit clause of the United States Constitution, explained that “a federal court judgment against

[an Arizona insolvent insurer] inevitably would destabilize Arizona’s efforts to manage [the]

insolvency.”67

Similarly, in Anshutz v. J. Ray McDermott Co., Inc., an insurer was placed under a “Final

63 Rec. Doc. 495-2 at 1.

64 Rec. Doc. 449-1 at 1.

65 Clark v. Fitzgibbons, 105 F.3d 1049, 1051 (5th Cir. 1997) (citing the McCarran–Ferguson Act).

66 Id. (internal citation and quotation omitted)

67 Id. at 1053.

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Order of Liquidation” by the Circuit Court of Cook County, Illinois while an appeal against it was

pending.68 The Fifth Circuit held that “[a]n orderly liquidation requires that this Court not interfere

with the order of the Circuit Court of Cook County,” explaining that “[r]ecognition by this Court

of the effectuation of the liquidation of this insurance company by the State of Illinois is in

accordance with federal policy which directs that the control over the insurance business remain

in the hands of the states.”69

Additionally, in State ex rel. Guste v. ALIC Corp, the Second Circuit Court of Appeal of

Louisiana explained:

Louisiana’s scheme for liquidating insolvent insurers is very similar to proceedings

in bankruptcy. Unlike bankruptcy proceedings, however, wherein all proceedings

involving the debtor are automatically stayed by operation of law, with certain

enumerated exceptions, the state district court wherein the receivership proceedings

are initiated has the authority to issue broad injunctions to insure that the integrity

of the receivership proceeding is maintained.70

In light of Louisiana’s comprehensive statutory scheme for regulating insolvent insurers

and Fifth Circuit precedent admonishing courts to avoid interfering with state administrative

processes involving insolvent insurers, the Court exercises its discretion to stay the claims pending

against Lamorak.71

B. Plaintiffs’ Motion to Sever Claims against Lamorak

Plaintiffs contend that “if the Court is inclined to grant relief to Lamorak Insurance

68 Anshutz v. J. Ray McDermott Co., 642 F.2d 94, 95 (5th Cir. 1981).

69 Id.

70 595 So. 2d 797, 799 (La. Ct. App. 1992) (internal citations omitted).

71 See also Olin Corp. v. Lamorak Ins. Co., No. 84-CV-1968 (JSR), 2021 WL 982426 (S.D.N.Y. Mar. 15,

2021) (staying an action in which Lamorak is a defendant in light of the Commonwealth Court of Pennsylvania’s

Liquidation Order in part under the “principles of comity.”).

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Company, Plaintiffs request that the claims against Lamorak Insurance Company be severed” from

the claims pending against the several other defendants in this litigation.72 In support, Plaintiffs

argue that severance is appropriate under Rule 42(b) because: (1) “severing the claims against the

Avondale interests will avoid confusion with the claims against the other shipyards;” (2)

“[a]llowing the claims against the non-Avondale defendants to go forward will expedite the

proceedings as the Avondale defendants cannot be part of a trial until at least September 2021;”

(3) severing the claims does not prejudice any defendants because all defendants have had the

opportunity to prepare their defenses and cross examine Plaintiffs’ expert witnesses; and (4) the

witness testimony and documentary proof that will be required in the proposed severed cases will

only be duplicative for the Plaintiffs.73

In opposition, the Avondale Interests contend that severance is inappropriate under Rule

21 because Plaintiffs’ claims against Lamorak and several other defendants, including the

Avondale Interests, arise from the same transaction or occurrence and involve common questions

of fact and law.74 The Avondale Interests further contend that severing the claims against Lamorak

will not promote settlement or judicial economy because the Court will be forced to conduct two

jury trials possibly resulting in inconsistent jury verdicts.75 The Avondale Interests also note that

“Plaintiffs claims against [the Avondale Interests] are inextricably intertwined with the claims

72 Rec. Doc. 449-1 at 1.

73 Rec. Doc. 551 at 2–3.

74 Rec. Doc. 550 at 3–5.

75 Id. at 5.

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against Lamorak such that they cannot be settled separately.”76 In addition, the Avondale Interests

aver that severing the claims against Lamorak will result in undue prejudice to the Avondale

Interests and to Lamorak by hindering potential settlement negotiations and increasing litigation

costs for the Avondale Interests.77

Under the overlapping standards applicable to Rule 21 and Rule 42(b), the Court finds that

severance is inappropriate in this case. First, severing the claims against only Lamorak without

severing the claims against its insureds would be highly prejudicial to Lamorak’s insureds who

have tendered their defenses to Lamorak. Additionally, the Avondale Interests are Lamorak’s

insureds, and the Avondale Interests have raised several cross-claims and third-party claims in this

litigation.

Second, severing the claims against Lamorak and its insureds while proceeding to trial

against the remaining defendants in this action would result in the risk of inconsistent jury verdicts.

Additionally, as noted by the Avondale Interests, Plaintiffs’ claims in this action arise from the

same transaction or occurrence, namely Mr. Gooding’s alleged asbestos exposure while working

for the American Bureau of Shipping in the 1970s. Consequently, all claims involve common

questions of fact and law, meaning that separate trials would likely frustrate judicial economy. In

addition, under the Louisiana law applicable to the survival claims raised in this case, damages are

allocated amongst defendants according to virile share principles.78 Severing claims against

certain defendants would therefore frustrate the parties’ ability to resolve this case as a whole and

76 Id.

77 Id. at 6.

78 See Cole v. Celotex Corp., 599 So. 2d 1058 (La. 1992).

14

may result in undue prejudice to both Plaintiffs and defendants, who would have to bear the

increased costs of litigating this case twice. Accordingly, the Court declines to sever the claims

against Lamorak from the claims against the remaining defendants in this litigation.

V. Conclusion

For the foregoing reasons,

IT IS HEREBY ORDERED that the “Motion to Enforce Stay and Notice of Liquidation

and Statutory Stay””’ filed by Defendant Lamorak Insurance Company is GRANTED.

IT IS FURTHER ORDERED that the “Motion to Sever Claims against Lamorak

Insurance Company”®? filed by Plaintiffs is DENIED.

IT IS FURTHER ORDERED that the above-captioned action is STAYED AND

ADMINISTRATIVELY CLOSED.

IT IS FURTHER ORDERED that a status conference is set for September 16, 2021 at

3:00 PM.

NEW ORLEANS, LOUISIANA, this 19thday of May, 2021.

NANNETTE JOLIVETTE BROWN |

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Rec. Doc. 495.

8 Rec. Doc. 449.

15

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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