United States District Court, E.D. New York
January 29, 2004.
GEORGE HOM, Plaintiff, -against- THE HONORABLE LAWRENCE BRENNAN, J.F.C, THE HONORABLE CARNELL FOSKEY, J.F.C., DOROTHY PHILLIPS, ESQ., LAW DEPARTMENT SUPERVISOR, DEBBIE MEHR, FAMILY COURT CLERK SUPERVISOR, NEW YORK STATE GOVERNOR GEORGE PATAKI, Versuslaw GROSSMAN, ESQ., Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
The plaintiff George Hom (the "plaintiff" or "Hom"), proceeding
pro se, commenced an action in the New York State Supreme Court,
County of Nassau against the Honorable Lawrence Brennan, J.F.C. ("Judge
Brennan"), the Honorable Carnell Foskey, J.F.C. ("Judge Foskey"), Dorothy
Phillips, Esq. ("Phillips"), Debbie Mehr ("Mehr"), and New York State
Governor George Pataki ("Pataki") (collectively, the "State Defendants"),
and Lois Grossman, Esq. ("Grossman") (collectively, the "defendants")
alleging, among other things, that the defendants deprived him of his
civil rights in violation of 42 U.S.C. § 1983 ("Section 1983").
Grossman filed a Notice of Removal to this Court with the consent of
the State Defendants. Presently before the Court are: (1) the plaintiff's
motion to remand the action back to the New York State Supreme Court,
County of Nassau with costs and sanctions; (2) Grossman's motion to
dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure ("Fed.R. Civ. P.") 12(b)(6); and (3) Six separate motions by
the plaintiff to supplement his complaint so as to set forth events which
have happened since the filing of his complaint.
The facts are taken from the plaintiff's verified complaint unless
The complaint states that the plaintiff is currently involved in
litigation in the Nassau County Family Court against his former spouse
Jane Zullo (the "Family Court action").
On or about November 1, 2001, the Family Court action was re-assigned
to Judge Brennan. The plaintiff alleges that during the time in which
Judge Brennan was presiding over the family court case, he "deliberately
displayed open bias against [the] plaintiff." Compl. ¶ 6. For
example, the plaintiff alleges that from November 1, 2001 through
February, 2003, Judge Brennan held scheduled monthly open court
appearances in which the he allegedly "continuously, willfully, and
repeatedly threatened and intimidated" the plaintiff, Compl. ¶ 8b.
The plaintiff further alleges that from November 1, 2001 through March
27, 2003, Judge Brennan allegedly "delayed the administration of his
judicial duties" by not addressing certain motions. Compl. ¶ 10.
On or about March 13, 2002, Phillips, the supervising law clerk at the
Family Court, held a closed door conference with respect to a then
pending custody/visitation proceeding. After this proceeding, Phillips
allegedly threatened and coerced the plaintiff into settling his custody
petition. The plaintiff further claims that on or about June 11, 2002,
Phillips allegedly conspired with a representative at the Nassau-Suffolk
Law Services by engaging in "ex-parte communications with Nassau-Suffolk
Law Services" in which the "actual directives of a certain court order
dated March 22, 2002 were altered." Compl. ¶ 15(b). As a result, the
plaintiff allegedly suffered "extraordinary damages."
Almost one year later, on or about March 25, 2003, the plaintiff filed
an Article 78 petition in the New York State Supreme Court, County of
Nassau to, among other things, demanding that Judge Brennan recuse
himself from the Family Court action. On April 3, 2003, Judge Brennan
recused himself and the case was subsequently transferred to Judge
On April 7, 2003, upon Judge Foskey's request, Grossman, a supervising
attorney with the Nassau-Suffolk Law Services Committee who represents
Zullo, provided a case status report and allegedly misstated certain
information regarding an incarceration proceeding. The plaintiff alleges
that after he responded to Grossman's allegedly incorrect status report,
Judge Foskey held an incarceration proceeding after which the plaintiff
was incarcerated overnight. The plaintiff further alleges that his
incarceration was also caused by Judge Brennan's delays in reducing his
court rulings into writing. Grossman allegedly gave two boxes of donuts
to "someone in the Law Department office" in exchange for documents which
the plaintiff later learned was a copy of his order to show cause. Compl.
On or about April 21, 2003, the plaintiff, proceeding pro se,
commenced this action in the New York Supreme Court, County of Nassau.
The complaint entitled "Amended Article 78 Proceeding  and Sect[ion]
1983 Litigation in State Court" asserts nine causes of action including,
among other things that Judge Brennan, together with the other
defendants, conspired to deprive the plaintiff of his civil rights as
guaranteed to him under the United
States Constitution. Compl. ¶ 46.
On May 7, 2003, Grossman filed a Notice of Removal to this Court with
the consent of the State Defendants. On May 16, 2003, the plaintiff filed
a motion to remand the case back to the New York State Supreme Court,
County of Nassau. Presently before the Court are: (1) the plaintiff's
motion to remand the action back to the New York State Supreme Court,
County of Nassau with costs and sanctions; (2) Grossman's motion to
dismiss for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6); and (3) Six motions by the plaintiff to supplement his
complaint so as to set forth events which have happened since the filing
of his complaint. The Court notes that the State Defendants make
reference to a motion to dismiss the complaint that they filed in the
State Supreme Court, County of Nassau prior to the filing of the Notice
of Removal. However, because that motion was never filed with this Court,
it cannot be considered by this Court.
A. Remanding the Action
28 U.S.C. § 1447(c) states that a case shall be remanded "[i]f at
any time before final judgment it appears that the district court lacks
subject matter jurisdiction [over an action removed from a state court to
a federal court]." Subject matter jurisdiction may be based on a federal
question, see 28 U.S.C. § 1331, or diversity of citizenship. See
28 U.S.C. § 1332.
In order to determine whether the Court has subject matter jurisdiction
over an action removed from a state court to a federal court, a court is
limited to an examination of the allegations on the face of the
plaintiff's complaint in the underlying action. W. 14th St. Comm. Corp.
v. 5 W. 14th Owners Corp., 815 F.2d 188, 193 (2d Cir. 1987); see also
Hernandez v. Conriv Realty Assoc., 116 F.2d 35, 37 (2d Cir. 1997)
("Aside from diversity of citizenship jurisdiction, a case generally may
be filed in federal court only if a federal question appears on the face
of the plaintiff's `well-pleaded complaint.' ") (citing Caterpillar Inc.
v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425 (1987)). Whether a
complaint raises a federal question,
must be determined from what necessarily appears
in the plaintiff's statement of his own claim in
the bill or declaration, unaided by anything
alleged in anticipation or avoidance of defenses
which it is thought the defendant may interpose.
Taylor v. Anderson, 234 U.S. 74
, 75-76, 34 S.Ct. 724 (1914). Thus,
regardless of whether a defendant intends to assert a defense invoking
federal law, a case cannot be removed unless there exists either a
federal question or diversity jurisdiction on the face of the original
complaint. See Hernandez, 116 F.3d at 38.
Here, not only has the plaintiff titled his action "Sect[ion] 1983
Litigation," but throughout the complaint, the plaintiff specifically
states that jurisdiction is based on, among other things, Section 1983.
In addition, the plaintiff makes several references to alleged violations
of his civil rights and specifically indicates that "[Judge] Brennan[,]
most if not all of the . . . co-defendants, ha[ve] conspired to
retaliate against [the plaintiff]. . . and to deprive [the]
[p]laintiff of his [c]ivil [r]ights as guaranteed to him under the
United States Constitution." Compl. ¶ 46.
Thus, because the underlying complaint raises a federal question under
Section 1983, the Court has subject matter jurisdiction over this action.
Accordingly, Hom's motion to remand this case back to the New York State
Supreme Court is denied.
B. Grossman's Motion to Dismiss
As stated above, Grossman filed a motion to dismiss the claims against
her for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
1. Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his complaint which would entitle him to relief. King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999); Bernheim v.
Litt, 79 F.3d 318, 321 (2d Cir. 1996). The court must accept as true
all of the factual allegations set out in the complaint, draw inferences
from those allegations in the light most favorable to the plaintiff, and
construe the complaint liberally. See Tarshis v. Riese Org.,
211 F.3d 30, 35 (2d Cir. 2000) (citing Desiderio v. National Ass'n of
Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)). The issue is
not whether a plaintiff will ultimately prevail but whether the claimant
is entitled to
offer evidence to support the claims. Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
In addition, the Court must liberally interpret the complaint of a
pro se plaintiff. Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594 (1972); Williams v. Smith, 781 F.2d 319,
322 (2d Cir. 1986). Nevertheless, pro se status "does not exempt
a party from compliance with relevant rules of procedural and substantive
law." Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983) (citations
2. As to Grossman
As stated above, the plaintiff alleges that on April 7, 2003, upon
Judge Foskey's request, Grossman provided a case status report and
misstated certain information regarding an incarceration proceeding. The
plaintiff alleges that after he responded to Grossman's allegedly
incorrect status report, Judge Foskey ordered that the plaintiff be taken
into custody. The plaintiff was subsequently incarcerated for one night.
The plaintiff also claims that on April 10, 2003, he saw Grossman give
two boxes of donuts to "someone in the Law Department office." Compl.
¶ 31. The plaintiff claims that these donuts were exchanged for "an
illegal preview" of the Order to Show Cause that the plaintiff filed on
April 9, 2003. Compl. ¶ 36.
The plaintiff does not specifically indicate the theory under which
Grossman is allegedly liable. However, contrary the plaintiff's
contention, Grossman, a supervising
attorney with the Nassau-Suffolk Law Services, is not a state actor
for purposes of Section 1983. See Fariello v. Rodriguez,
148 F.R.D. 670, 686 (E.D.N.Y. 1993) (holding that a staff attorney with the
Nassau-Suffolk Law Services is not a state actor); see also Neustein
v. Orbach, 732 F. Supp. 333, 345 (S.D.N.Y. 1990) (court appointed
private counsel are not considered to be acting under "color of state
law"); Lefcourt v. Legal Aid Soc., 445 F.2d 1150, 1157 (2d Cir.
1971) (holding that the Legal Aid Society is private entity which does
not "act under color of state law" by representing clients). Thus,
Grossman may only be subjected to a Section 1983 action if she conspired
with or willfully engaged in joint activity with the state or its agents.
See Fariello, 148 F.R.D. at 686.
To state a claim against a private entity on a section 1983 conspiracy
theory, the complaint must allege facts demonstrating that the private
entity acted in concert with the state actor to commit an
unconstitutional act. Spear v. Town of West Hartford,
954 F.2d 63, 68 (2d Cir. 1992). "In final analysis the question is whether
`the conduct allegedly causing the deprivation of a federal right [can] be
fairly attributable to the State.'" Id. (quoting National
Collegiate Athletic Ass't v. Tarkanian, 488 U.S. 179, 199, 109 So.
Ct. 454 (1988)). Here, the plaintiff fails to allege with particularity
what the alleged conspiracy is, the purpose of the conspiracy, who was
involved in the conspiracy, the existence of an act in furtherance of the
conspiracy, or that he was injured as a result of the conspiracy
In construing the pro se plaintiff's complaint liberally,
see Haines v. Kerner,
404 U.S. 519, 520-21, 92 S.Ct. 594 (1972), the plaintiff fails to set
forth a cause of action against Grossman for conspiracy or for anything
else. Accordingly, Grossman's motion to dismiss the Section 1983 causes
of action against her pursuant to Rule 12(b)(6) is granted. Having
dismissed the federal claims against Grossman, the Court will also
dismiss any claims pursuant to New York state law that the plaintiff
intended to bring against Grossman. See Arroyo v. City of New York,
et al., No. 99 Civ. 1458, 2003 WL 22211500, at *3 (E.D.N.Y. Sept.
25, 2003) (citing United Mine Workers v. Gibbs, 383 U.S. 715,
726, 86 S.Ct. 1130 (1966)); see also Karmel v. Claiborne, Inc.,
No. 99 Civ. 3608, 2002 WL 1561126, at * 3 (S.D.N.Y. July 15, 2002)
("[w]hen federal claims are dismissed early in the litigation for
example, before trial on a summary judgment motion dismissal of
state law claim[s]. . . is appropriate.") (citation omitted)).
C. Plaintiff's Motions for Leave to Supplement His
As stated above, the plaintiff filed six separate motions for leave to
file supplemental pleadings and/or add additional defendants.
Under Fed.R.Civ.P. 15(d), a federal district court may "upon
reasonable notice and upon such terms as are just, permit [a] party to
serve a supplemental pleading setting forth transactions or occurrences
or events which have happened since the date of the pleading sought to be
supplemented. Absent "undue delay, bad faith, dilatory tactics, undue
prejudice to the party to be served pleading, or futility, the motion
should be freely granted."
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962);
see also Katzman v. Sessions, 156 F.R.D. 35, 38
(E.D.N.Y. 1994). However, if an amendment is futile, "it is not an abuse
of discretion to deny leave to amend" to the moving party. Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). A
determination that a proposed claim is futile is made under the same
standards that govern a motion to dismiss under Rule 12(b)(6). See
A.V. by Versace, Inc. v. Gianni Versace, S.P.A., 160 F. Supp.2d 657,
666 (S.D.N.Y. 2001); see also Randolph-Rand Corp. of New York v.
Tidy Handbags, Inc., No. 96 Civ. 1829, 2001 WL 1286989, at *5
(S.D.N.Y., Oct. 24, 2001) (An amendment is futile "if the proposed
amended complaint would be subject to `immediate dismissal' for failure
to state a claim or on some other ground." (quoting Jones v. New York
Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.
1. Plaintiff's First Motion for Leave to File Supplemental
On June 30, 2003, Hom filed a motion for leave to file supplemental
pleadings and to add an additional co-defendant. In particular, the
plaintiff seeks to: (1) add Judge Richard Lawrence ("Judge Lawrence"),
the third Family Court Justice assigned to the plaintiff's proceedings,
as a defendant; and (2) to add "Further Damages Caused by Defendant Judge
Brennan" resulting from Judge Brennan's issuance of a "Remand Order" on
March 25, 2003 that was adverse to the plaintiff. Compl. ¶ 18.
a. Absolute Judicial Immunity
Plaintiff seeks to add Judge Lawrence as a defendant in this action
based on Justice Lawrence's alleged "blantantly abusive actions against
[the plaintiff]" during several May, 2003 hearings. Compl. ¶ 16.
However, because Judge Lawrence is protected by judicial immunity, such
an amendment would be futile.
It is well settled that judges are absolutely immune from suit for any
actions taken within the scope of their judicial responsibilities or
within his or her jurisdiction. See Mireles v. Waco, 502 U.S. 9,
9-12, 112 S.Ct. 286 (1991); Maestri v. Jutkofsky, 860 F.2d 50,
52-53 (2d Cir. 1988). The rule of absolute judicial immunity is necessary
because "principled and fearless decision-making" will be compromised if
a judge "fears that unsatisfied litigants may hound him with litigation
charging malice or corruption." Vasile v. Dean Witter Reynolds
Inc., 20 F. Supp.2d 465, 489 (E.D.N.Y. 1998) (internal quotations
and citation omitted).
The Supreme Court has emphasized that the scope of the judge's
jurisdiction must be construed broadly where the issue is the immunity
of the judge. Stump v. Sparkman, 435 U.S. 349, 356-57,
55 L.Ed.2d 331, 98 S.Ct. 1099 (1978) (citation omitted). Absolute immunity
exists "however erroneous the act may have been, however injurious in
its consequences it may have proved to the plaintiff." Bradley v.
Fisher, 80 U.S. 335, 347, 20 L.Ed. 646 (1871). Indeed, the
doctrine of judicial immunity is so expansive that it is overcome only
when (1) the action is nonjudicial, i.e., not taken in the
capacity; or (2) the action, although judicial in nature, is
performed in the complete absence of all jurisdiction. Mireles,
502 U.S. at 11-12.
Here, Hom's claims against Judge Lawrence stem from his actions while
presiding over two proceedings in Family Court. Nothing in the record
suggests that Judge Lawrence was without jurisdiction over the proceeding
or that he acted outside his judicial capacity. See Vasile,
20 F. Supp.2d at 489. To the extent that the proceeding may have allegedly
been conducted in an irregular or erroneous manner does not abrogate the
immunity. Stump, 435 U.S. at 363 n.12. As such, Judge Lawrence
is entitled to absolute judicial immunity against damages claims
resulting from the acts of which the plaintiff complains. Accordingly,
the potential claims against Judge Lawrence are futile and the
plaintiff's motion to add Judge Lawrence as a defendant is denied.
b. The Rooker-Feldman Doctrine
To the extent that the proposed supplemental claims seek to challenge
Judge Brennan's issuance of a "Remand Order," this Court lacks subject
matter jurisdiction to decide the claims under the Rooker-Feldman
doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 So.
Ct. 149 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983). Under this doctrine,
"federal district courts lack jurisdiction to review state court
decisions whether final or interlocutory in nature," Gentner v.
Shulman, 55 F.3d 87, 89 (2d Cir. 1995), and "federal review, if
any, can occur only by
way of a certiorari petition to the Supreme Court," Moccio v.
New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir.
1996). "Such jurisdiction is lacking because within the federal system,
only the Supreme Court may review a state court judgment."
Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir. 1998).
This doctrine also prohibits a district court review of state court
judgments to claims that are "inextricably intertwined" with a state
court's determinations. Kropelnicki v. Siegel, 290 F.3d 118, 128
(2d Cir. 2002). A claim is inextricably intertwined when "at a
minimum,. . . a federal plaintiff had an opportunity to litigate a claim
in a state proceeding (as either the plaintiff or defendant in that
proceeding),. . .[and] the claim . . . would be barred under the
principles of preclusion." Id. (internal quotations and citation
omitted). On the other hand, "where the claims were never presented in
the state court proceedings and the plaintiff did not have an opportunity
to present the claims in those proceedings, the claims are not
`inextricably intertwined' and therefore not barred by Rooker Feldman."
Id. at 118 (internal quotations and citation omitted).
Hom's allegations that Judge Brennan caused him further damages arise
from his issuance of a Remand Order which Judge Brennan allegedly
"crafted" this order to intentionally "mislead" the plaintiff. Aff. in
Support of Mot. to Suppl. ¶ 19. Because this claim is inextricably
intertwined with the state court's determinations and could have been
raised in state court, either in the Family Court or on appeal, the
bars the plaintiff from re-litigating these issues that were
decided by Judge Brennan. Accordingly, Hom's motion for leave to file
supplemental pleadings is denied.
2. Plaintiff's Second Motion for Leave to File Supplemental
On July 14, 2003, the Plaintiff filed a Second Motion for Leave to File
Supplemental Pleadings. In particular, the plaintiff seeks to supplement
the pleadings with more details about: (1) Judge Brennan's March 25, 2003
Remand Order; and (2) Phillips's alleged "sabotage" of the plaintiffs
ongoing family court case. Aff. ¶ 23.
As stated above, allegations involving Brennan's March 25, 2003 Remand
Order are barred by the Rooker-Feldman doctrine. In addition, as
supervising law clerk at the Family Court, Phillips has absolute immunity
from the plaintiff's potential claims. See Burns v. Reed,
500 U.S. 478, 498-502, 111 S.Ct. 1934 (1991) (Immunity extends not only to
judges but to other persons engaged in a judicial function, which is
defined as the "performance of the function of resolving disputes between
parties, or of authoritatively adjudicating private rights.").
Accordingly, Hom's second motion for leave to file supplemental pleadings
3. Plaintiff's Third Motion for Leave to File Supplemental
On July 24, 2003, the Plaintiff moved for leave to file a third
supplemental pleading so as to add claims against Grossman that she
"barraged [his] attorney with disparaging and defamatory remarks" and
"even addressed [his] attorney by her first name." Aff. ¶ 2. Hom
also seeks to join Hearing Examiner Tejinder S. Kahlon ("Kahlon")
and Court Reporter Gabriella Elmendorf ("Elmendorf") as co-defendants.
As set forth above, Hom's additional claims against Grossman would fail
to survive a motion to dismiss as Grossman is not subject to liability
under Section 1983. In addition, because hearing examiners in the Family
Court are deemed to be the functional equivalent of judges for purposes
of absolute immunity, Butz v. Economou, 438 U.S. 478, 513, 98 So.
Ct. 2894 (1978); Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir.
1987), any claims against Kahlon would also fail. Moreover, Gabriella is
entitled to qualified immunity against Hom's claims that she "took too
long to forward transcripts to [him]." See Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167 (1993) (holding that
the failure of a court reporter to produce a trial transcript in timely
fashion was covered by qualified, not absolute immunity). Accordingly,
Hom's third motion for leave to file supplemental pleadings is denied.
4. Plaintiff's Fourth Motion for Leave to File Supplemental
On August 26, 2003, the plaintiff filed a motion for leave to file
fourth supplemental pleadings so as to add allegations that Grossman
engaged in a conspiracy by not correcting Judge Lawrence when he
sentenced the plaintiff to jail for failure to pay child support. As set
forth above, these claims were already determined to be insufficient to
establish Grossman's liability under Section 1983. Thus, Hom's fourth
motion for leave to file
supplemental pleadings is denied.
5. Plaintiff's Fifth Motion for Leave to File Supplemental
On October 21, 2003, the plaintiff filed, for the fifth time, a motion
for leave to file supplemental pleadings. The plaintiff seeks to assert
federal charges under 18 U.S.C. § 241 and 371 against the defendants.
However, because neither of these statutes provide a private right of
action, see Powers v. Karen, 768 F. Supp. 46, 51 (E.D.N.Y. 1991)
aff'd, 963 F.2d 1522 (2d Cir. 1992); see also
Dugar v. Coughlin, 613 F. Supp. 849, 852 note 1 (S.D.N.Y. 1985)
(holding that 18 U.S.C. § 371 does not provide the basis for an
implied right of action), these claims would not survive a motion to
dismiss. Accordingly, plaintiff's fifth motion for leave to file
supplemental pleadings is denied.
6. Plaintiff's Sixth Motion for Leave to File Supplemental
On January 20, 2004, the plaintiff filed motion for leave to file sixth
supplemental pleadings to set forth a cause of action under
18 U.S.C. § 371. As stated above, there is no private right of action under
this statute. Therefore the plaintiff's sixth motion for leave to file
supplemental pleadings is denied.
D. Leave to Amend
Because the plaintiff has attempted to amend and supplement his
complaint six times, the Court declines to grant the plaintiff another
opportunity to amend his complaint. See Pangburn v. Culbertson,
200 F.3d 65, 70-71 (2d Cir. 1999) ("Futility is a valid reason for
denying a motion to amend . . . where it is beyond doubt that
the plaintiff can prove no set of facts in support of his amended
claims.") (internal quotations and citation omitted).
Based on the foregoing, it is hereby
ORDERED, that the plaintiff's motion to remand the action to
the Supreme Court, County of Nassau with costs and sanctions is
DENIED; and it is further
ORDERED, that defendant Lois Grossman's motion to dismiss the
claims against her pursuant to Rule 12(b)(6) is GRANTED; and it
ORDERED, that the plaintiff's six motions for leave to file
supplemental pleadings are all DENIED; and it is further
ORDERED, that the Clerk of the Court is directed to amend the
caption to read as follows:
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