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Ronald L. Huber; William J. Airgood; Anthony Defabbo v. Robert G. Taylor


September 29, 2011


The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan


ECF Nos. 401, 407


As noted in this Court‟s last Opinion, the claims presently remaining before this Court in this 2002 action relate to Defendants‟ representation of the eight (8) above-named Plaintiffs (the "Named Plaintiffs"), and assertedly of others similarly situated, in consolidated individual personal injury actions for exposure to asbestos, in the State Court of Mississippi (the "Mississippi Asbestos Exposure Consolidated Litigation" or "Mississippi AECL"). More specifically, "Plaintiffs maintain, under the express law of the case as set forth by the Court of Appeals, a claim for breach of fiduciary duty under Texas law, by which they may be entitled, despite having incurred no actual injury, to disgorgement of all or some portion of the attorney fees paid by the Named Plaintiffs (or members of their putative class, if such class were to be certified). . . . And with evidence sufficient to raise a question of intentional breach of fiduciary duty, Plaintiffs might also be entitled to punitive damages under Texas law." See Opinion and Memorandum Order on Motion to Strike and Dismiss at 3-4 (emphasis added); 2 n. 1 (detailing Circuit Court‟s finding of no actual harm).*fn1 Plaintiffs‟ claims turn on allegations that Defendants breached their Texas law fiduciary duty (by failing to adequately disclose material information, including, e.g., co-counsel arrangements and/or settlement information, to Mississippi AECL participants residing in Pennsylvania, Ohio and Indiana (the "Northern Clients"); allocating settlement funds disproportionately owing to conflicting fee incentives; and/or failing a duty of candor/disclosure by imposing excessive charges). See id. at 3; see also id. at 6 (explaining that a challenge to propriety of fees/expenses, rather than breach of disclosure of information related to them, would be precluded by, among other reasons, the law of the case/scope of the Circuit‟s remand).

Presently pending is Plaintiff‟s Motion for Class Certification, ECF No. 401, which, for reasons (a) among those well-briefed by Defendants and (b) set forth below, will be denied.*fn2

Also pending is Defendants‟ Motion for Partial Summary Judgment, ECF No. 407, requesting dismissal of claims based on alleged "conflicting fee incentives" and "retaliatory and ineffective withdrawals of representation". This Motion will, on the evidence of record, be granted.


A. Plaintiffs' Action, as Set Forth in Their Third Amended Complaint, is Predominantly One for Monetary Damages Under Texas Statutory Law and Not One for Injunctive or Declaratory Relief

As a preliminary matter, the Court is in accord with Defendants‟ observations regarding the restriction of certification under Rules 23(b)(1) or 23(b)(2) to those actions seeking predominantly injunctive or declaratory relief. See Barnes v. American Tobacco Co., 161 F.3d 127, 142 (3d Cir.1998) ("Subsection (b)(2) class actions are limited to those class actions seeking primarily injunctive or corresponding declaratory relief" and (b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages."); Wal-Mart Stores, Inc. v. Dukes, 2011 WL 2437013, *12 (U.S. June 20, 2011) (holding that claims for monetary relief may not be certified under 23(b)(2) where "the monetary relief is not incidental to the injunctive or declaratory relief");*fn3 Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 318 (5th Cir. 2007) (explaining that focus on monetary damages set class apart from 23(b)(1) class actions, where principal goal is injunctive relief). See also generally 5 Moore‟s Federal Practice Section 23.41 & .42 (explaining that exception to certification under (b)(1) or (b)(2) for predominantly injunctive or declaratory relief, with monetary relief being "merely incidental", is under a "limited fund" theory);*fn4 Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)(determining that, even in hybrid case requesting injunctive/declaratory and monetary relief, "incidental" monetary relief "flow[s] directly from liability to the class as a whole" and should be that to which class members would then be automatically entitled, not dependent on "subjective differences of each class member‟s claims" and not requiring "additional hearing to resolve the disparate merits of each individual‟s case").

In this case, Plaintiffs‟ Third Amended Complaint as filed, purposefully abandons claims for injunctive relief and, as Defendants observe, focuses on claims for disgorgement of fees and punitive damages for alleged past misconduct under Texas statutory law. See Defendants‟ Joint Memorandum of Law in Opposition to Plaintiff‟s Motion for Class Certification ("Defendants‟ Joint Opposition") at 2.*fn5 Plaintiffs‟ requests for disgorgement of fees and punitive damages do not meet the requisite standard. See, e.g., Wal-Mart, 2011 WL 2437013 at *14 ("Rule 23(b)(2) does not speak of "equitable‟ remedies generally but of injunctions and declaratory judgments."); Jefferson v. Ingersoll Int‟l, Inc., 195 F.3d 894, 897 (7th Cir. 1999); see also Defendants‟ Joint Opposition at 2, 48 (noting that Plaintiffs characterize their case as seeking "the equitable remedies of disgorgement and an accounting, and punitive damages"); id. at 51 & n. 45 (providing citations to earlier Circuit Court cases holding that injunctive or declaratory relief, for purposes of Rule 23(b), are distinct/specific forms of relief and not an "umbrella term‟ encompassing, e.g., restitution or disgorgement). Nor is Plaintiffs‟ request for a retrospective declaration that Defendants violated fiduciary duties sufficient for purposes of the injunctive/declaratory relief requirement of (b)(1) and/or (b)(2). See Defendants‟ Joint Opposition at 48-49 (citing Third Amended Complaint request for order "declaring that Defendants violated their fiduciary duties"); Defendants‟ Joint Surreply in Further Opposition to Motion for Class Certification at 1-3 (noting Complaint‟s request for an order requiring defendants to "disclose potential and actual conflicts" and "terms of all settlements or pending settlements").*fn6 See also id. at 50-52 & n. 43 (providing extensive case citations illustrative of the well-established principle that injunctive or declaratory relief cases address present/future, versus past, harms). Cf. Matin v. Keitel, 205 Fed. Appx. 925, 928 (3d Cir. 2006) (affirming dismissal of declaratory judgment action seeking "merely a declaration that defendants violated . . . rights in the past").

In addition, as discussed below, Plaintiffs also fail certification under provisions of Rule 23(b) for want of predominance or cohesiveness.

B. Plaintiffs Fail to Satisfy Either "Predominance" or "Cohesiveness", as Required for Their Requested Class Certification Under Rule 23(b)

Plaintiffs assert, in their related briefings, that the individual issues inherent in this action and previously noted by this Court, including specifically the individual issues of disclosure, (a) constitute not an element of their claim, but solely an affirmative defense, and (b) are irrelevant to class certification. They err on both counts. First, Plaintiffs‟ claim has been, and remains under the law of the case, essentially that Defendants breached a Texas law fiduciary duty via a failure to adequately disclose. What was and was not disclosed is therefore obviously and necessarily a part of Plaintiffs‟ proof of that breach. That is, the information communicated to the Northern Clients (by Defendants, the client‟s local counsel, or their representatives) goes to an actual element of the claim and is part of Plaintiffs‟ prima facie case. Second, Plaintiffs‟ blanket proposition to the contrary notwithstanding, affirmative defenses are relevant to class certification.*fn7 And while differences in disclosure may not be relevant to the requirement of "typicality" under Rule 23(a) - which is where Plaintiffs essentially attempt to pigeonhole them in their briefing - they are clearly relevant to class determination on the whole because they directly relate to the requisite consideration of "predominance" under Rule 23(b)(3), or its functional equivalent, "cohesiveness", under Rule 23(b)(2).

The Adequacy of Defendants‟ Disclosures is an Element of Plaintiffs‟ Claim

As detailed in Defendants‟ pleadings, the extensive record in this nine-year-old case reflects individual questions regarding what disclosures were necessary to (i.e., what were reasonable and adequate given, e.g., the client‟s prior knowledge, level of sophistication and understanding, and degree of interest/inquiry) and what disclosures were made to each client.*fn8

Again, Plaintiffs‟ claim for breach of fiduciary duty under Texas law turns largely on Defendants‟ allegedly inadequate disclosures of information.*fn9 And it is not the case that identical disclosures were either required or made. Plaintiff s have made no such showing, and, to the contrary, the record indicates significant differences as to both (a) individual client‟s prior knowledge and inquiry, and (b) the information provided initially and in response to client questionsby the various representatives (including clients‟ local counsel and third-party information-providers, whose dialogs with clients -- significant evidence indicates -- were not scripted or standardized).*fn10

Even assuming that certain disclosures, standing alone, may be inadequate across the board (i.e., to every client, however situated), where, as here, the record strongly reflects differences in the particulars and totality of statements/disclosures made by various counsel and representatives to individual clients , the adequacy of each set of disclosures must be determined on a case-by-case basis.*fn11 And in the presence of differing client circumstances and differing disclosures, a declaration that Defendants breached a fiduciary duty toward one client would not conflict with a declaration that they satisfied that duty toward another. In sum, the case presents necessarily individual questions foundational to an element of Plaintiffs‟ claim that Defendants breached their fiduciary duty.*fn12

Individual Issues Regarding Disclosures Preclude Certification under (b)(2) or (b)(3) In addition, the differences in (a) disclosures and (b) individual factors assessing the reasonability thereof foreclose certification of a class under either the "common questions predominate" requirement of Rule 23(b)(3) or its functional equivalent, the "cohesiveness" requirement of Rule 23(b)(2).*fn13

Class action proponents seeking Rule 23(b)(3) certification must present some creditable demonstration that class-wide issues "predominate", i.e., that the issues may primarily be addressed through generalized -- as opposed to individualized -- proof. A class action will not provide significant savings of time and effort, and is not maintainable on predominance grounds, where Plaintiffs must introduce substantial individualized proof (i.e., evidence that varies from member to member) to establish their claims. See generally Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) (noting that predominance inquiry "trains on the legal or factual questions that qualify each class member‟s claim").*fn14 Even assuming Plaintiffs were not bound by their disavowment of an intent to seek certification under (b)(3),*fn15 common questions do not predominate where, as here, the evidence indicates varying written and oral disclosures made over several years in different states, and in accordance with individual Mississippi AECL plaintiffs‟ questions/concerns.

Similarly, Courts in this Circuit analyze certification under (b)(2) under the rubric of "cohesiveness", which effectively incorporates the predominance requirement. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 248 (1975). "Indeed, a (b)(2) class may require more cohesiveness than a (b)(3) . . . because unnamed members are bound by the action" with no opportunity to opt out." Barnes, 161 F.3d at 143 (further observing that if (b)(2) certification were authorized in presence of individual liability issues "little value would be gained in proceeding"). See also, e.g, Gaston v. Exelon Corp., 247 F.R.D. 75, 87-88 (E.D. Pa. 2007) (denying (b)(2) certification where individual determinations would create "an unwieldy miasma rife with mini-trials").*fn16

Accordingly, Plaintiffs‟ Motion for Class Certification will be denied.*fn17

C. Plaintiffs Also Fail to Satisfy Adequacy of Representation, as Required for Class Certification Under Rule 23(a)

As another, independent grounds for denial of class certification, the Court observes that Plaintiffs fail to meet the requirement of adequacy of representation under Rule 23(a). *fn18

Adequacy of representation generally considers whether "the named plaintiffs‟ interests are sufficiently aligned with those of the absentee proposed class members. See In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 800 (3d Cir. 1995). See also Baby Neal, 43 F.3d at 55 ("Adequacy of representation assures that the named plaintiffs' claims are not antagonistic to the class. . . ..").

In this case, Plaintiffs who have repudiated their attorney-client relationship with Defendants seek to represent a class consisting of a large number of presumptively satisfied clients who have (1) according to the record and case history, received more money through their participation in the Mississippi AECL than they would otherwise have received for their claims,*fn19 and (2) ongoing administrative claims being processed. As this Court has previously suggested, it seems a rather dubious proposition that clients who believe counsel have breached fiduciary duties and should be made to, e.g., disgorge their fees, can properly represent presumptively satisfied clients. *fn20 It also appears questionable, at best, that a client could make a breach of fiduciary claim against counsel, obtain disgorgement of that counsel‟s fees, and then compel that lawyer to continue representative work on behalf of such client. There is, therefore, a conflict of interests between (a) those clients who elect suit for disgorgement and effective termination of representation and (b) those clients who are satisfied with, and do not wish to dispense with, the lawyer‟s services. See Defendants‟ Joint Opposition at 4; cf. generally, January 25, 2010 Memorandum Opinion at 11. As noted above, the sine qua non of adequate representation in a class action is the absence of a conflicting interest between the putative representatives and the class. Here, the Plaintiffs, due to their repudiation of the relationship, have no interest in the ongoing services of Defendants, unlike the class. The resulting conflict is palpably demonstrated by the fact that Plaintiffs filed papers in this Court seeking to enjoin Defendants from consummating settlements on behalf of members of the class notwithstanding that such injunctions would prevent or at least delay the securing of monies other class members might be glad to have in hand. See January 25, 2010 Opinion and Memorandum Order.

D. Typicality Remains Problematic, But is Not a Basis for Denial of Certification

Finally, this Court observes, but does not base its denial of class certification upon, its continuing belief that Plaintiffs‟ effective termination of the client-counsel relationship with Defendants affects consideration of Rule 23(a)‟s requirement of typicality as well. "The typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals." Barnes, 161 F.3d at 141. See generally May 3, 2004 Memorandum Opinion of Judge Schwab at 24 (observing that "the named Plaintiffs are no longer represented by defendant Taylor or Local Counsel . . . because Taylor could no longer represent them [in light of complaint allegations]); January 25, 2010 Opinion at 12 (observing that named Plaintiffs had "effectively terminated their attorney-client relationship").


Defendants‟ Motion for Partial Summary Judgment, ECF No. 407, requests dismissal of claims for breach of duty under Texas law based on alleged "conflicting fee incentives" and "retaliatory and ineffective withdrawals of representation". As a preliminary matter, the Court notes the applicable standard: "Once the moving party points to evidence demonstrating that no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." See Azur v. Chase Bank USA, Nat‟l Ass‟n, 601 F.3d 212, 216 (3d Cir. 2010). See also generally Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986); Defendants‟ Joint Reply in Further Support of Motion for Summary Judgment at 2, n. 3 (chronicling 2008 and 2010 amendments to Rule 56 as they relate to partial summary judgment on, e.g., an "issue within a claim" that may be eliminated from litigation in the absence of the non-movant‟s establishment of a material fact question, or a "part of each claim or defense"); 11 Moore‟s Federal Practice (3d ed.) Section 56.401[1].

A. Plaintiffs Have Failed to Adduce Evidence Sufficient to Maintain a Claim for Breach of Fiduciary Duty of Loyalty Under Texas Law Premised on Conflicting Fee Incentives

Following review of the evidentiary record, this Court observed in the course of its January 25, 2010 Opinion that Plaintiffs‟ "conflicting fee incentives" allegation appeared "factually problematic" in light of the provisions of the co-counsel agreements of record. See Jan. 25, 2010 Opinion at 16-19 (providing explication of evidence); see also July 20, 2010 Memorandum Opinion at 3, 7-8. More specifically, rather than suggesting that Defendants were motivated to purposefully undervalue Northern-State members of the Mississippi AECL class because they would be entitled to a higher percentage of Southern-State clients‟ fees, the co-counsel agreement indicated that "fee-sharing arrangements with regard to the Southern Clients entitled individual Defendants to the same or lesser -- rather than greater -- percentage fee." See July 20, 2010 Opinion at 8.*fn21 In January, 2010, the Court suggested that Plaintiffs address "the factually underpinnings of Defendant‟s cogent defense". When Plaintiffs elected to omit any direction to substantiating evidence of a conflict of interest as to fees in subsequent pleadings, the Court suggested the claim would be more appropriately addressed on a Motion for Partial Summary Judgment than by dismissal (as then requested by Defendants). See id.

The facts in evidence are that:

(1) Defendant Taylor (a Texas lawyer) had a written co-counsel agreement with local counsel for Northern clients in the Mississippi AECL that entitled him to between 95-97.5% of an underlying 40% contingency fee.*fn22

(2) Defendants Taylor and Pritchard (a Mississippi lawyer) had a written Agreement on Fees with Walter Weathers (a Texas lawyer who is not a party to this action), pertaining to and applied with regard to Southern clients in the Mississippi AECL, that entitled Taylor to 50%, and Pritchard and Weathers to 25% each, of an underlying 40% contingency fee. See Defendants‟ Joint Concise Statement of Undisputed Material Facts and Exhibits thereto. See also Defendants‟ Joint Reply Brief in Further Support of MPSJ at 4-5 & n. 8 (citing testimony that Agreement pertained to Southern clients in the Mississippi AECL (e.g., clients from Mississippi and neighboring states such as Alabama and Louisiana), including both those with whom Pritchard had a direct client relationship and those referred to him by other lawyers in Southern states).

This Agreement includes language, in its fourth paragraph, encompassing "all referral or other fees collected from other attorneys on cases filed or to be filed in the State of Mississippi, to specifically include, but not be limited to, all fees paid by William Roberts Wilson, Alwyn Luckey, John Arthur Eaves, Maurice Campbell, Matt Dove, and Billy H. Davis, Jr. . . ." See Defs. Ex. E in Support of Partial Summary Judgment Motion. Defendants have introduced testimony that this language was intended and applied to additional Southern client cases, e.g., referrals from the named counsel, all of whom resided/practiced in Mississippi, Texas and/or other Southern states. See Defendants‟ Joint Reply Brief in Further Support of MPSJ at 5, 7-8 & n. 12 (citing deposition testimony of parties to Agreement).

(3) The four (4%) percent fee received by Defendant Cox (a North Carolina lawyer) for work in negotiating certain related settlements did not vary by class member‟s state of residence. See January 25, 2010 Opinion at 17; Third Amended Complaint at Paragraph 17; Plaintiffs‟ Memorandum of Law in Opposition at 18.

(4) Cox and Taylor were responsible for allocating the settlement funds among the Mississippi AECL plaintiffs . See Plaintiffs‟ Memorandum of Law In Opposition to Defendants‟ MPSJ at 6 (citing Plaintiffs‟ Statement of Facts at paragraph 22 and Exhibits thereto); id. at 19.

In maintaining the viability of a "conflicting fee incentive" theory, Plaintiffs now assert that the "other fees" language of the Agreement on Fees between Taylor, Pritchard and Weathers applied toNorthern as well as Southern clients (e.g., that Taylor had a conflict of interest because his 95-97% fee in the Northern clients‟ Mississippi AECL cases, like Taylor‟s fee in the Southern clients‟ Mississippi AECL cases, was subject to a 50% fee share to Pritchard and Weathers). See, e.g., Plaintiffs‟ Memorandum of Law In Opposition at 2. Plaintiffs have adduced, however, no evidence - despite nine (9) years of litigation and extensive and protracted discovery -- supporting this assertion.*fn23 And, as documented in Defendants‟ pleadings, the further factual record from discovery undertaken in this action is to the contrary. See Defendants‟ Joint Reply Brief in Further Support at 4-11 (providing extensive citation and excerpts from deposition testimony of parties to Agreement on Fees regarding intent and consistent implementation of Agreement on Fees to Southern AECL cases).

Plaintiffs‟ assertions that this deposition testimony - in further support of the fee arrangements set forth in the written documents of record - constitutes "hearsay" or inadmissible "parole evidence" are misplaced for reasons competently canvassed in Defendants‟ Joint Reply Brief in Further Support of the PMSJ at 11-13. Compare Plaintiffs‟ Memorandum of Law In Opposition at 2. Moreover, the parties‟ performance, i.e., their actual conduct, is what matters in this context, where the question raised by Plaintiffs is whether Defendant counsel allocating settlement funds had an expectation of retaining a greater portion of the underlying fee in Southern cases. The understanding of the parties to the fee-sharing agreements and the parties‟ practice pursuant to those agreements is certainly material to determining that expectation. A contested interpretation of the language that runs contrary to all evidence of the parties‟ understandings and course of performance is insufficient to raise a triable issue as to any purported conflicting interest.

B. Plaintiffs Have Failed to Adduce Evidence Sufficient to Maintain a Claim for Breach of Fiduciary Duty of Loyalty Under Texas Law Premised on Retaliatory or Ineffective Withdrawal of Representation

As noted in Section II(D), supra, this Court has previously spoken to the termination of the parties‟ attorney-client relationship. See, e.g., Janury 25, 2010 Memorandum Opinion at 12 ("Although it is not entirely clear from the pleadings whether the Plaintiffs regard themselves as current or former dissatisfied clients of the Defendants, they certainly have effectively terminated their attorney-client relationship, i.e., their relationship of trust is irretrievably broken"); Cf. Huber II, 532 F.3d at 242 (observing that Plaintiffs "were previously represented by Defendants . . .").

Plaintiffs‟ Third Amended Complaint alleges that Taylor withdrew his representation of the named Plaintiffs " in retaliation for filing this lawsuit" and that in "attempting to withdraw from their representation", Defendant breached a fiduciary duty of loyalty and failed to comply with the withdrawal requirements of the Texas Disciplinary Rules. These claims remain unsubstantiated and are appropriate for summary judgment.

More particularly, the evidence indicates that Named Plaintiffs‟ elected to retain new counsel and to file this action, including a First Amended Complaint filed in March, 2002 containing counts for professional malpractice, breach of fiduciary duty, fraud, conversion, conspiracy and deceptive trade practices. In Fall, 2002, in accordance with Texas Rules of Professional Conduct,*fn24 Plaintiffs were properly formally notified of Taylor‟s inability to represent them given the conflict of interest created. Counsel also extended appropriate assurances of their protection of Plaintiffs‟ interests through, e.g., Plaintiffs‟ participation in settlements made/substantially made at the time of the effective termination (i.e., Plaintiffs‟ filing of their First Amended Complaint in March, 2002), and offers of assistance. See Memorandum of Law in Support of Defendants‟ Joint MPSJ at 12-117 citing to Exhibits of record, including withdrawal letters, and quoting their provisions);*fn25 id. (citing CP Solutions PTE, Ltd. v. Gen. Elec. Co., 550 F.Supp.2d 298, 302 (D. Conn. 2008) ("[I]t is hard to imagine a situation presenting a greater conflict of interest than an attorney‟s being sued by his client for malpractice while still serving as counsel of record in the underlying action . . . . Clearly, under the circumstances . . ., withdrawal of representation is not only warranted but required."); Defendants‟ Joint Reply in Further Support of MPSJ at 13-14 (distinguishing cases cited by Plaintiffs regarding counsel-initiated withdrawal or abandonment). Plaintiffs‟ assertion that Taylor‟s withdrawal was "ineffective" similarly fails in light of the evidence of record. See generally Texas Disciplinary Rules of Professional Conduct 1.15; Withdrawal by Lawyer 48 Tex. Prac., Tex. Lawyer & Jud. Ethics Section1:22 (2009-10); Weiss v. Comm‟n for Lawyer Discipline, 981 S.W.2d 8, 15-16 (Tex. App. 1998). *fn26 Plaintiffs fail to adduce evidence substantiating that, following Plaintiffs' filing suit against Defendant counsel, they lacked access to legal advice through their counsel in this case, or that Taylor failed in any way to comply with applicable codes of professional conduct, failed to cooperate in the transfer of representation, or by his improper conduct prejudiced the Named Plaintiffs‟ interests.

The Court moreover observes that Named Plaintiffs‟ filing of a lawsuit clearly asserting that Defendants breached their duties toward Plaintiffs with every settlement amounted to a repudiation of authority to enter into such settlements on their behalf, if not a repudiation of the attorney-client relationship in its entirety. Consequently, Named Plaintiffs cannot now be heard to complain of Defendants‟ discontinuance of representation in post-litigation settlements or of notice from Local Counsel and Taylor of withdrawal.


Accordingly, upon review of the pleadings and briefs of record, as well as the evidence before the Court in this 2002 action, Plaintiff‟s Motion for Class Certification be denied and Defendants‟ Motion for Partial Summary Judgment be granted. An appropriate Order will follow.

Lisa Pupo Lenihan Chief United States Magistrate Judge

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