1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 David Hoffman, et al., No. CV-21-00106-TUC-JCH 11 Plaintiffs, 12 v. ORDER 13 Cincinnati Insurance Company, et al., 14 Defendants.
16 Before the Court is Plaintiffs’ Motion to Remand. (Doc. 8.) The Motion is fully 17 briefed. (Docs. 11, 21.) As explained below, the Motion will be granted. 18 I. BACKGROUND 19 On July 22, 2019, Plaintiff David Hoffman suffered a traumatic brain injury and 20 other permanent injuries in a car accident. (Doc. 1-1 at 5 ¶¶ 13-16, 19-20; Doc. 6 at 3 ¶¶ 21 13-16, 19-20.) The other driver was solely at fault and had a liability insurance policy limit 22 of $100,000. (Doc. 1-1 at 5 ¶¶ 14, 23-24; Doc. 6 at 3-4 ¶¶ 14, 23-24.) David Hoffman and 23 his wife Molly (“Plaintiffs”) were insured by The Cincinnati Insurance Company 24 (“Cincinnati”) under three insurance policies that included Underinsured Motorist (“UIM”) 25 coverage with combined policy limits of $6,000,000. (Doc. 1-1 at 4 ¶¶ 6, 12; Doc. 6 at 1, 26 3 ¶¶ 6, 12.) 27 The at-fault driver’s insurance paid Plaintiffs its insured’s policy limits. (Doc. 1-1 28 at 5 ¶ 25; Doc. 6 at 4 ¶ 25.) Plaintiffs demanded that Cincinnati pay the combined 1 $6,000,000 policy limits. Plaintiffs’ demand was sent to Cincinnati adjuster Kathy Kerr 2 (“Kerr”). (Doc. 1-1 at 5-6, ¶ 26; Doc. 6 at 4 ¶ 26.) Cincinnati refused Plaintiffs’ demand 3 and the parties arbitrated Plaintiffs’ claim1 at the conclusion of which Plaintiffs were 4 awarded $2,850,000 distributed as follows: $2,750,000 to David and $100,000 to Molly. 5 (Doc. 1-1 at 7 ¶ 45; Doc. 6 at 7 ¶ 45.) 6 On February 10, 2021, Plaintiffs filed suit in Arizona Superior Court, Pima County 7 against Cincinnati and Kerr (“Defendants”) alleging that Cincinnati breached its duty of 8 good faith and fair dealing and that Kerr aided and abetted Cincinnati’s breach. (Doc. 1-1 9 at 8-10 ¶¶ 52-62, ¶¶ 66-71.) Defendants timely removed the case to this Court based on 10 diversity of citizenship pursuant to 28 U.S.C. § 1332(a). (Doc. 1.) 11 Plaintiffs and Kerr are Arizona residents. (Doc. 1-1 at 3 ¶¶ 1, 3; Doc. 6 at 1 ¶ 3.) 12 Cincinnati is an Ohio corporation with its principal place of business in Ohio. (Doc. 1-1 at 13 3 ¶ 2; Doc. 6 at 1 ¶ 2.) Plaintiffs’ claim satisfies the amount in controversy requirement. 14 (Doc. 1-1 at 10.) In their Notice of Removal, Defendants preemptively alleged that Kerr was fraudulently joined claiming that she was not the adjuster responsible for UIM portion 15 of Plaintiffs’ claim but that Gary Gluck (“Gluck”), an Ohio resident, was the adjustor 16 responsible for handling the UIM portion of the claim. (Doc. 1 at 1 ¶ 2.) 17 II. PLAINTIFFS’ MOTION TO REMAND 18 Plaintiffs move to remand arguing diversity jurisdiction is absent because Kerr 19 participated in the UIM claim handling process and she was not fraudulently joined. (Doc. 20 8 at 2-3.) They argue that Kerr was the UIM claim adjustor because her actions were 21 identical to those of a UIM claim adjustor. (Doc. 21 at 2.) Kerr testified she: (1) evaluated 22 the loss reserve of the UIM claim; (2) was the only Cincinnati employee who spoke with 23 Plaintiffs regarding their claim prior to Cincinnati retaining counsel; (3) was instructed to 24 summarize David Hoffman’s treatment and Plaintiffs’ demand; (4) was copied on almost 25 every email regarding the UIM claim; (5) authored every status report in the claim file, a 26 job that is part of an adjustor’s job; and (6) made the decision not to take Molly Hoffman’s 27
28 1 Plaintiffs’ claim appears to have included a med pay claim, an auto damage claim, and the UIM claim for which Cincinnati assigned one claim number. (Doc. 21-1 at 13.) 1 statement. (Doc. 21-1 at 4, 6-8, 10, 12-13.) Kerr testified that Cincinnati did not complete 2 an evaluation of their UIM claim because, “[t]hat was what the arbitration was for.” Id. at 3 7. She was the Cincinnati representative at the arbitration of Plaintiffs’ claim. Id. at 12. 4 Defendants urge that Kerr did not have “input as to any decision in how to conduct 5 the defense at the arbitration or whether or not to settle the claim and did not provide any 6 other assistance or encouragement with respect to the arbitration.” (Doc. 11 at 3.) They 7 argue that Kerr was only responsible for the medical payment portion of Plaintiffs’ claim 8 and that she had no responsibility for the UIM portion of the claim. Id. at 1-4. They insist 9 that Gluck set the UIM reserve and supervised the handling of the UIM claim and that Kerr 10 had no decision-making authority over the UIM claim. Id. at 2-3. 11 III. LEGAL STANDARDS 12 a. Diversity Jurisdiction 13 Federal district courts have diversity jurisdiction over a lawsuit where the amount 14 in controversy exceeds $75,000 and the citizen of each plaintiff differs from that of each defendant. See 28 U.S.C. § 1332(a). When a civil action meets these criteria and is filed in 15 a state court, the action may be removed to federal court. See 28 U.S.C. § 1441(b). An 16 exception to the complete diversity requirement exists where a non-diverse defendant has 17 been fraudulently joined. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 18 2001). 19 b. Fraudulent Joinder 20 Fraudulent joinder exists when the plaintiff “fails to state a cause of action against 21 a resident defendant, and the failure is obvious according to the settled rules of the state.” 22 Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). Where 23 joinder of a non-diverse defendant is fraudulent, the case may be removed to federal district 24 court provided that the remaining parties are completely diverse. Morris, 236 F.3d at 1067. 25 There is a “strong presumption” against removal jurisdiction and the burden of establishing 26 that removal is proper lies with the defendant; thus, all ambiguities are resolved in favor of 27 remand to state court. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 28 “[I]f there is a possibility that a state court would find that the complaint states a 1 cause of action against any of the resident defendants, the federal court must find that the 2 joinder was proper and remand the case to the state court.” Hunter, 582 F.3d at 1046 3 (quoting Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003)). 4 Moreover, where the possibility remains unclear, the defendant has not met his burden to 5 prove fraudulent joinder and remand is required. See Ward v. Travelers Pers. Ins. Co., No. 6 CV-20-01079-SPL, 2020 WL 4732153, at *2 (D. Ariz. Aug. 14, 2020). 7 While the standard for fraudulent joinder is similar to the analysis required for a 8 Rule 12(b)(6) motion to dismiss for failure to state a claim based upon which relief can be 9 granted, the two are not equivalent. Grancare, LLC v. Thrower by & through Mills, 889 10 F.3d 543, 549 (9th Cir. 2018). “A claim against a defendant may fail under Rule 12(b)(6), 11 but that defendant has not necessarily been fraudulently joined.” Id. This is because the 12 Rule 12(b)(6) standard requires plausibility while fraudulent joinder only requires the 13 possibility of sufficiently pleaded facts to state a claim to relief. Compare Bell Atl. Corp. 14 v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 David Hoffman, et al., No. CV-21-00106-TUC-JCH 11 Plaintiffs, 12 v. ORDER 13 Cincinnati Insurance Company, et al., 14 Defendants.
16 Before the Court is Plaintiffs’ Motion to Remand. (Doc. 8.) The Motion is fully 17 briefed. (Docs. 11, 21.) As explained below, the Motion will be granted. 18 I. BACKGROUND 19 On July 22, 2019, Plaintiff David Hoffman suffered a traumatic brain injury and 20 other permanent injuries in a car accident. (Doc. 1-1 at 5 ¶¶ 13-16, 19-20; Doc. 6 at 3 ¶¶ 21 13-16, 19-20.) The other driver was solely at fault and had a liability insurance policy limit 22 of $100,000. (Doc. 1-1 at 5 ¶¶ 14, 23-24; Doc. 6 at 3-4 ¶¶ 14, 23-24.) David Hoffman and 23 his wife Molly (“Plaintiffs”) were insured by The Cincinnati Insurance Company 24 (“Cincinnati”) under three insurance policies that included Underinsured Motorist (“UIM”) 25 coverage with combined policy limits of $6,000,000. (Doc. 1-1 at 4 ¶¶ 6, 12; Doc. 6 at 1, 26 3 ¶¶ 6, 12.) 27 The at-fault driver’s insurance paid Plaintiffs its insured’s policy limits. (Doc. 1-1 28 at 5 ¶ 25; Doc. 6 at 4 ¶ 25.) Plaintiffs demanded that Cincinnati pay the combined 1 $6,000,000 policy limits. Plaintiffs’ demand was sent to Cincinnati adjuster Kathy Kerr 2 (“Kerr”). (Doc. 1-1 at 5-6, ¶ 26; Doc. 6 at 4 ¶ 26.) Cincinnati refused Plaintiffs’ demand 3 and the parties arbitrated Plaintiffs’ claim1 at the conclusion of which Plaintiffs were 4 awarded $2,850,000 distributed as follows: $2,750,000 to David and $100,000 to Molly. 5 (Doc. 1-1 at 7 ¶ 45; Doc. 6 at 7 ¶ 45.) 6 On February 10, 2021, Plaintiffs filed suit in Arizona Superior Court, Pima County 7 against Cincinnati and Kerr (“Defendants”) alleging that Cincinnati breached its duty of 8 good faith and fair dealing and that Kerr aided and abetted Cincinnati’s breach. (Doc. 1-1 9 at 8-10 ¶¶ 52-62, ¶¶ 66-71.) Defendants timely removed the case to this Court based on 10 diversity of citizenship pursuant to 28 U.S.C. § 1332(a). (Doc. 1.) 11 Plaintiffs and Kerr are Arizona residents. (Doc. 1-1 at 3 ¶¶ 1, 3; Doc. 6 at 1 ¶ 3.) 12 Cincinnati is an Ohio corporation with its principal place of business in Ohio. (Doc. 1-1 at 13 3 ¶ 2; Doc. 6 at 1 ¶ 2.) Plaintiffs’ claim satisfies the amount in controversy requirement. 14 (Doc. 1-1 at 10.) In their Notice of Removal, Defendants preemptively alleged that Kerr was fraudulently joined claiming that she was not the adjuster responsible for UIM portion 15 of Plaintiffs’ claim but that Gary Gluck (“Gluck”), an Ohio resident, was the adjustor 16 responsible for handling the UIM portion of the claim. (Doc. 1 at 1 ¶ 2.) 17 II. PLAINTIFFS’ MOTION TO REMAND 18 Plaintiffs move to remand arguing diversity jurisdiction is absent because Kerr 19 participated in the UIM claim handling process and she was not fraudulently joined. (Doc. 20 8 at 2-3.) They argue that Kerr was the UIM claim adjustor because her actions were 21 identical to those of a UIM claim adjustor. (Doc. 21 at 2.) Kerr testified she: (1) evaluated 22 the loss reserve of the UIM claim; (2) was the only Cincinnati employee who spoke with 23 Plaintiffs regarding their claim prior to Cincinnati retaining counsel; (3) was instructed to 24 summarize David Hoffman’s treatment and Plaintiffs’ demand; (4) was copied on almost 25 every email regarding the UIM claim; (5) authored every status report in the claim file, a 26 job that is part of an adjustor’s job; and (6) made the decision not to take Molly Hoffman’s 27
28 1 Plaintiffs’ claim appears to have included a med pay claim, an auto damage claim, and the UIM claim for which Cincinnati assigned one claim number. (Doc. 21-1 at 13.) 1 statement. (Doc. 21-1 at 4, 6-8, 10, 12-13.) Kerr testified that Cincinnati did not complete 2 an evaluation of their UIM claim because, “[t]hat was what the arbitration was for.” Id. at 3 7. She was the Cincinnati representative at the arbitration of Plaintiffs’ claim. Id. at 12. 4 Defendants urge that Kerr did not have “input as to any decision in how to conduct 5 the defense at the arbitration or whether or not to settle the claim and did not provide any 6 other assistance or encouragement with respect to the arbitration.” (Doc. 11 at 3.) They 7 argue that Kerr was only responsible for the medical payment portion of Plaintiffs’ claim 8 and that she had no responsibility for the UIM portion of the claim. Id. at 1-4. They insist 9 that Gluck set the UIM reserve and supervised the handling of the UIM claim and that Kerr 10 had no decision-making authority over the UIM claim. Id. at 2-3. 11 III. LEGAL STANDARDS 12 a. Diversity Jurisdiction 13 Federal district courts have diversity jurisdiction over a lawsuit where the amount 14 in controversy exceeds $75,000 and the citizen of each plaintiff differs from that of each defendant. See 28 U.S.C. § 1332(a). When a civil action meets these criteria and is filed in 15 a state court, the action may be removed to federal court. See 28 U.S.C. § 1441(b). An 16 exception to the complete diversity requirement exists where a non-diverse defendant has 17 been fraudulently joined. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 18 2001). 19 b. Fraudulent Joinder 20 Fraudulent joinder exists when the plaintiff “fails to state a cause of action against 21 a resident defendant, and the failure is obvious according to the settled rules of the state.” 22 Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). Where 23 joinder of a non-diverse defendant is fraudulent, the case may be removed to federal district 24 court provided that the remaining parties are completely diverse. Morris, 236 F.3d at 1067. 25 There is a “strong presumption” against removal jurisdiction and the burden of establishing 26 that removal is proper lies with the defendant; thus, all ambiguities are resolved in favor of 27 remand to state court. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 28 “[I]f there is a possibility that a state court would find that the complaint states a 1 cause of action against any of the resident defendants, the federal court must find that the 2 joinder was proper and remand the case to the state court.” Hunter, 582 F.3d at 1046 3 (quoting Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003)). 4 Moreover, where the possibility remains unclear, the defendant has not met his burden to 5 prove fraudulent joinder and remand is required. See Ward v. Travelers Pers. Ins. Co., No. 6 CV-20-01079-SPL, 2020 WL 4732153, at *2 (D. Ariz. Aug. 14, 2020). 7 While the standard for fraudulent joinder is similar to the analysis required for a 8 Rule 12(b)(6) motion to dismiss for failure to state a claim based upon which relief can be 9 granted, the two are not equivalent. Grancare, LLC v. Thrower by & through Mills, 889 10 F.3d 543, 549 (9th Cir. 2018). “A claim against a defendant may fail under Rule 12(b)(6), 11 but that defendant has not necessarily been fraudulently joined.” Id. This is because the 12 Rule 12(b)(6) standard requires plausibility while fraudulent joinder only requires the 13 possibility of sufficiently pleaded facts to state a claim to relief. Compare Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 547 (2007) (holding that to survive a 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face”) 15 with Hunter, 582 F.3d at 1046 (requiring remand if there is a possibility that a state court 16 would find that a complaint states a cause of action against an allegedly fraudulently joined 17 defendant) (emphasis added). “Because the purpose of the fraudulent joinder doctrine is to 18 allow a determination whether the district court has subject matter jurisdiction, the standard 19 is similar to the ‘wholly insubstantial and frivolous’ standard for dismissing claims under 20 Rule 12(b)(1) for lack of federal question jurisdiction.” Grancare, LLC, 889 F.3d at 549 21 (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)). 22 IV. AIDING AND ABETTING CLAIM 23 Under Arizona law, a claim for aiding and abetting tortious conduct requires proof 24 that: (1) the primary tortfeasor committed a tort that caused injury to the plaintiff; (2) the 25 defendant knew that the primary tortfeasor’s conduct constituted a breach of duty; and (3) 26 the defendant must have substantially assisted or encouraged the primary tortfeasor in 27 achievement of the breach. Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement 28 Masons Loc. No. 395 Pension Tr. Fund, 38 P.3d 12, 23 (Ariz. 2002) (en banc), as corrected 1 (Apr. 9, 2002). “Where an insurer delegates its claim handling responsibilities to an 2 administrator and its adjuster, the agent, i.e., the adjuster, can be held liable for aiding and 3 abetting an insurer’s violation of the duty of good faith and fair dealing.” Whitcomb v. Twin 4 City Fire Ins. Co., No. CV-20-01770-PHX-MTL, 2020 WL 6699499, at *3 (D. Ariz. Nov. 5 13, 2020) (quoting Gastelo v. Wesco Ins., Co., No. CV-18-02659-PHX-MTL, 2020 WL 6 1285912, at *3 (D. Ariz. Mar. 18, 2020) (internal quotations omitted)). “‘Numerous cases 7 in this [d]istrict’ confirm that for an aiding and abetting claim against an insurance agent 8 to survive, the plaintiff ‘must allege some action’ taken ‘separate and apart from the facts 9 giving rise’ to a claim against the insurer.” Whitcomb, 2020 WL 6699499, at *3 (quoting 10 Centeno v. Am. Liberty Ins. Co., No. CV-18-01059-PHX-SMB, 2019 WL 568926, at *3 11 (D. Ariz. Feb. 12, 2019)).2 12 In Whitcomb, the plaintiff alleged the defendant insurance agent aided and abetted 13 the insurance company in its bad faith claims handling and had additionally made 14 “independent decisions” about the claim handling process. 2020 WL 6699499, at *3. Specifically, the plaintiff alleged that the agent made “independent decisions to hire a law 15 firm, retain a defense oriented medical doctor and fail[ed] to pay the undisputed amount 16 due under the policy.” Id. District Judge Michael Liburdi found from these allegations that 17 the state court could possibly find that the plaintiff stated a cause of action of aiding and 18 abetting against the agent. Accordingly, the district court rejected the argument that the 19 agent was fraudulently joined and remanded the case to state court. Id. at *4. 20 In Haney v. ACE Am. Ins. Co., No. CV-13-02429-PHX-DGC, 2014 WL 1230503, 21
22 2 There is also caselaw in this district noting that there are a number of state court cases that have allowed an aiding and abetting claim even where the plaintiff failed to allege a 23 separate act by the adjuster. See Chukly v. Amer. Fam. Mut. Ins. Co., No. CV-17-0088- TUC-RCC (LCK), 2017 WL 5952759, at *3-4 (D. Ariz. June 7, 2017), report and 24 recommendation adopted in full, 2017 WL 3262541, at *3 (Aug. 1, 2017) (collecting cases and finding that “…the Arizona Court of Appeals this Court have both reach divergent 25 results in factually similar cases. Because removal jurisdiction is strictly construed and all ambiguity must be resolved in favor of remand, the Court finds remand is warranted.”); 26 Ward, 2020 WL 4732153, at *2 (granting motion to remand were “it remain[ed] unclear whether Plaintiff has sufficiently stated a claim for aiding and abetting [under Arizona 27 law]”). Because this Court finds that Plaintiffs have sufficiently alleged a separate act by Kerr and thus determines that the state court could possibly find that Plaintiffs sufficiently 28 allege an aiding and abetting claim against Kerr, the Court does not determine whether remand would also be appropriate if Plaintiffs had failed to allege a separate act by Kerr. 1 at *5 (D. Ariz. Mar. 25, 2014), District Judge David Campbell found the plaintiff’s 2 allegations that the defendant insurance agent “substantially assisted or encouraged [the 3 insurer] in delaying or denying the claim without a reasonable basis” sufficiently stated a 4 separate act by the defendant agent “which could amount to aiding and abetting.” See also, 5 Gastelo v. Wesco Ins. Co., No. CV-18-02659-PHX-MTL, 2020 WL 1285912, at *3 (D. 6 Ariz. Mar. 18, 2020) (denying motion to dismiss under Rule 12(b)(6) and finding that 7 plaintiff stated a claim for aiding and abetting insurer’s conduct under Arizona law where 8 the plaintiff alleged the defendant agent “had the requisite scienter, and that through her 9 actions and inaction she provided substantial assistance or encouragement for [the 10 insurer’s] alleged breach [of the duty of good faith and fair dealing]”). 11 Here, Plaintiffs allege that Cincinnati breached its duty of good faith and fair dealing 12 when it failed to evaluate and handle Plaintiffs’ UIM claim in a reasonable manner and 13 caused them to attend arbitration as a claim evaluation tool. (Doc. 1-1 at 8 ¶¶ 54-55, 57.) 14 Plaintiffs allege that Kerr, as Cincinnati’s agent, substantially assisted or encouraged Cincinnati in its breach of duty to them by ignoring important information about David 15 Hoffman’s injuries and creating errors thereby causing Cincinnati to unreasonably handle 16 the UIM claim. Id. at 9-10 ¶¶ 66-68. The Court finds there is a distinction in the alleged 17 actions of Defendants—failure to investigate and handle the claim on the part of Cincinnati 18 versus ignoring information and causing errors on the part of Kerr. Plaintiffs also allege 19 that Kerr aided and abetted Cincinnati’s alleged breach of duty through the exercise of her 20 independent judgement by ignoring3 important information about David Hoffman’s 21 injuries. Id. at 10 ¶ 67. Kerr has admitted to making independent judgments throughout the 22 UIM claim handling process. For example, she testified that she was asked to evaluate of 23 the UIM loss reserve to decide if it was sufficient. (Doc. 21-1 at 4, 10.) She decided to not 24 summarize treatment and demand after being asked to do so by Gluck. Id. at 6-7. She made 25 the decision not to take Molly Hoffman’s statement after the accident. Id. at 8. 26
27 3 To ignore is an independent exercise of judgement. See Ignore, Black’s Law Dictionary (11th ed. 2019) (defining ignore as “to refuse to notice, recognize, or consider”); see also 28 Exercise of Judgment, Black’s Law Dictionary (11th ed. 2019) (defining the phrase as “[t]he use of sound discretion”). 1 In light of the foregoing, this Court finds Plaintiffs’ allegation that Kerr exercised 2|| independent decision making is sufficient for the state court to possibly find that Plaintiffs 3|| have sufficiently alleged an aiding and abetting claim against Kerr. 4 V. CONCLUSION 5 The state court could possibly find that Plaintiffs have sufficiently stated an aiding || and abetting claim against Kerr based upon her alleged acts of ignoring important information and causing error, exercising independent judgement, or acting in furtherance 8 || of Cincinnati’s failure to investigate the claim. Because the Court finds that the state court 9 || could possibly find that Plaintiffs have stated an aiding and abetting claim against Kerr, 10 || the Court must remand this case. Grancare, LLC, 889 F.3d at 548 (a federal court “must” 11 || remand the case “if there is a possibility that a state court would find that the complaint 12 || states a cause of action against any of the resident defendants”) (emphasis in Grancare, 13|| LLO. 14 Accordingly, 15 IT IS HEREBY ORDERED GRANTING Plaintiffs’ Motion to Remand (Doc. 8.) 16 This case is remanded to the Arizona Superior Court, Pima County, Case No. C20210672. 17 The Clerk of the Court is directed to close this case. 18 Dated this 25th day of October, 2021. 19 20 21 WS He Lhorrhn _ onorable John C. Hinderaker 22 United States District Judge 23 24 25 26 27 28
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