25, r.r. Use your scrolling feature so that the screen shows only the question. No changes are recommended for Rule 12 as published. 403, 9 Fed.Rules Serv. Instant access to millions of ebooks, audiobooks, magazines, podcasts and more. See Dysart v. Remington-Rand, Inc. (D.Conn. On Day 10, George filed a Rule 12(b)(1) motion raising the defense of lack of subject-matter jurisdiction. 1941); Crum v. Graham, 32 F.R.D. Can George raise all of these defenses at the same time in the same motion? R. Civ. Cf. A motion to dismiss is a device that allows a defendant to attempt to dispose of a plaintiff's claims before actually filing an answer to the plaintiff's complaint. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. Contact a qualified attorney to help you with preparing for and dealing with going to court. Various minor alterations in language have been made to improve the statement of the rule. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. (1935) 60705, 60706. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. She contended that the Firm, on June 19, 2012, delivered to her an incomplete copy of its complaint (the Non-Confidential Complaint), and that she had yet to be served with a complete copy of the complaint (the Confidential 1963) (regretfully following the Phillips case); see also Birnbaum v. Birrell, 9 F.R.D. but that in view of the adequate discovery procedure available under the Rules, motions for bills of particulars should be abolished altogether.); Walling v. American Steamship Co. (W.D.N.Y. 231, 1518; Kansas Gen.Stat.Ann. the adoption of the rule was ill advised. In Fla. R. Civ. 7, 7a, 7b, 8; 4 Mont.Rev.Codes Ann. ), Notes of Advisory Committee on Rules1937. Sally filed and served a summons and complaint, and a set of interrogatories, on George on Day 1. The plaintiff, for example, can raise the defenses in response to a counterclaim. 1. The language of Rule 12 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. most courts . P. 12(a)(4)(A). (e) Motion for a More Definite Statement. Subdivision (h) called for waiver of * * * defenses and objections which he [defendant] does not present * * * by motion * * * or, if he has made no motion, in his answer * * *. If the clause if he has made no motion, was read literally, it seemed that the omitted defense was waived and could not be pleaded in the answer. P. 12(b)(1)] cannot be waived. Compare Calif.Code Civ.Proc. (1937) 278 and 279; Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. After the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings. When ruling on a motion to dismiss, courts generally assume that the facts and allegations in the complaint are true and will view them in the light most favorable to the plaintiff. References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. See also the Advisory Committee's Note to amended Rule 4(b). 12e.231, Case 4, 2 F.R.D. 1470, No. P. 12 (a) (4) (A). Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. 12e.231, Case 7, 3 F.R.D. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. Fed. If the ruling is on some incidental question . 669 (1940) 2 Fed.Rules Serv. On Day 4, prior to his answer, George filed a motion under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. For example, a defendant made a general appearance by such actions as opposing plaintiffs motion to amend the complaint, engaging in discovery, challenging the legal sufficiency of the complaint, or possibly even informing the court that it chose not to appear. All 7 sub-sections of 12(b) may be used as grounds for a motion for dismissal. Rule 12(h)(3) provides that the defense of subject-matter jurisdiction may be raised at any time. It may also be raised by the court on its own motion. This cookie is set by GDPR Cookie Consent plugin. 134; Urquhart v. American-La France Foamite Corp. (App.D.C. Realty Corp. v. Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning (C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L. Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238. Co. of North America v. Pan American Airways, Inc. (S.D.N.Y. 1941) 38 F.Supp. P. 12(h)(3) provides that the defense of lack of subject matter jurisdiction [Fed. Rule 12(g)(2) in turn requires a defendant to raise certain Rule 12 defenses including insufficient 1391(a) [venue] and 1404(a) [transfer of venue]. P. 12(b)(2)],[iii] . Q1(b). What is the difference between these two? vii [105408] (1934); Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. 18). With the exception of dismissal for failure to state a claim upon which relief can be granted, all of the grounds for dismissal are separable from the merits. (1) Right to Join. Notes of Advisory Committee on Rules1966 Amendment, Subdivision (b)(7). P. 6(b), 7, 11, 12, and 15(a). R. Civ. R. Civ. 168; Best Foods, Inc. v. General Mills, Inc. (D.Del. (Courtright, 1931) 891033, 891034. U.S.C., Title 28, [former] 45, substantially continued by this rule, provides: No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. Compare Calif.Code Civ.Proc. Rule 12 (b) (5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court. Q9. Aug. 1, 1987; Apr. This cookie is set by GDPR Cookie Consent plugin. If the plaintiff fails to obtain proper service upon the defendant, the lawsuit must be dismissed due to the court's lack of jurisdiction. MOTION TO DISMISS FOR INADEQUATE SERVICE OF PROCESS . 1956); see also Rensing v. Turner Aviation Corp., 166 F.Supp. (3) United States Officers or Employees Sued in an Individual Capacity. filed under the circumstances described in Rule 12(g)(2). Has George waived the defense of failure to state a claim upon which relief could be granted? (1944) 65 S.Ct. Free access to premium services like Tuneln, Mubi and more. 12e.235, Case 1; Bowles v. Jack (D.Minn. However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion. And compare vote of Second Circuit Conference of Circuit and District Judges (June 1940) recommending the abolition of the bill of particulars; Sun Valley Mfg. This exercise explores one type of response to a complaint: a preliminary motion to dismiss under Federal Rule of Civil Procedure 12. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California 1. 12e.244, Case 8 (. 12). This is a Court Sample and NOT a blank form. Dec. 1, 2000; Apr. Notes of Advisory Committee on Rules1993 Amendment. See the Advisory Committee's Note to Rule 19, as amended, especially the third paragraph therein before the caption Subdivision (c).. Failure of defendant to assert one or more of these defenses in one of the preceding manners results in waiver of the defense(s). District Court. . REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss for Insufficient Service of Process filed by MAYER SHIRAZIPOUR, GABRIELLE SHIRAZIPOUR, 44 Second MOTION to Dismiss for Failure of Service of Process filed by MAYER SHIRA ZIPOUR, GABRIELLE SHIRAZIPOUR, 27 MOTION to Strike 22 Answer to Complaint, Counterclaim,, Motion to Strike Entity Defendants' endstream endobj 80 0 obj <> endobj 81 0 obj <> endobj 82 0 obj <>stream Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court. 79 0 obj <> endobj Rule 12(h)(1)(A) provides that a defense of lack of personal jurisdiction is waived by omitting it from a motion in the circumstances described in Rule 12(g)(2). Rule 12(g)(2) provides a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Since a personal jurisdiction defense was available, and a Rule 12(f) motion is a motion under this rule [Rule 12], the defense of personal jurisdiction was waived. Yes. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. More Motion to dismiss Ask a lawyer - it's free! 1. Search, Browse Law The change in title conforms with the companion provision in subdivision (h). P. 4.01(2). FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Time is needed for the United States to determine whether to provide representation to the defendant officer or employee. This cookie is set by GDPR Cookie Consent plugin. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. P. P. 12(g)(2)]; in the absence of a preliminary motion to dismiss, these defenses must be consolidated into the answer; or these defenses must be consolidated into an amendment to the answer that is allowed to be made as a matter of course. A motion to quash is the proper pleading to test the validity of a service of summons and complaint upon an entity that is not by its true or fictitious name made a party to an action. 4. R. Civ. The questions in the written exercise and the computer-assisted lesson examine these rules and statutes, consider the reasons for special treatment of Rule 12 defenses, and analyze the waiver provisions of the rule. The other Rule 12(b) defenses have nothing to do with the merits of the case, so they are easy to separate and rule on prior to proceeding with the main lawsuit. Compare [former] Equity Rule 29 (DefensesHow Presented); U.S.C., Title 28, [former] 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds: (Here state reasons, such as, (a) that the defendant is a corporation organized under the laws of Delaware and was not and is not subject to service of process within the State of Minnesota; (b) that the defendant has not been properly served with . %PDF-1.5 % It has led to confusion, duplication and delay.) The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. You will be required to exercise close scrutiny and interpretation of a complex set of interrelated provisions. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Exercise Three explored pleading a complaint. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 1948); Johnson v. Joseph Schlitz Brewing Co., 33 F.Supp. The judge will then review each side's motion, and give the court's decision at a predetermined hearing date. 3. A 12 (b) (6) motion to dismiss is a useful mechanisms to have a court dismiss a case or at least certain claims pre-trial. The language of Fed. R. Civ. 1986) P. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. Q1(d). (f) Motion to Strike. The defense is considered too important to allow it to be waived by mistake. (Williams, 1934) 8784; Ala.Code Ann. It is only after a plaintiff obtains proper service upon the defendant that the court obtains jurisdiction over the defendant to impose an enforceable judgment of liability and damages. On December 11, 2020, we granted Defendants' motion to dismiss. Settlement Reasons for dismissal vary. In ruling on a motion to dismiss, the trial judge may consider circumstantial as well as direct evidence. 12e.231, Case 6; Pedersen v. Standard Accident Ins. Notes of Advisory Committee on Rules1946 Amendment. (1) In General. Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the assert the following defenses by motion: (5) insufficient service of process. See Note to Rule 1, supra. Ruling on a Motion to Dismiss Should defendant choose that course of defense, and the motion prove unsuccessful, defendant is allowed 10 days after service of the courts unfavorable decision on the motion to answer. A motion to dismiss is a formal request for a court to dismiss a case. 2, 1987, eff. (c) Motion for Judgment on the Pleadings. Q5. The following questions are designed to probe why these defenses receive special treatment. (1943) 317 U.S. 695. Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. (1937) Rules 106112; English Rules Under the Judicature Act (The Annual Practice, 1937) O. All rights reserved. The sentence appended to subdivision (c) performs the same function and is grounded on the same reasons as the corresponding sentence added in subdivision (b). Sally filed a complaint against George and process was served on Day 1. Has George waived his venue defense? Sample motion for substitution of plaintiff in United States District Court. Sometimes a plaintiff may attempt to serve a defendant with process while also sending the defendant a request for waiver of service; if the defendant executes the waiver of service within the time specified and before being served with process, it should have the longer time to respond afforded by waiving service. Will this amendment save the personal jurisdiction defense? improper venue [Fed. It was transferred to this District on March 17, 2021. R. Civ. The term speaking motion is not mentioned in the rules, and if there is such a thing its limitations are undefined. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. to move for dismissal due to insufficient service of process in civil litigation in United States These cookies track visitors across websites and collect information to provide customized ads. For the reasons discussed below, the Court will quash Plaintiff's service on the Defendant, deny Defendant's Motion to Dismiss for lack of service of process, deny as moot Defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted, and direct that the Q7(d). Due process prohibits a Defendant from . A defendant who challenged jurisdiction and at the same time pleaded to the merits of the complaint obviously called on the power of the court; this was a general appearance. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Please enter a legal issue and/or a location, Begin typing to search, use arrow conclude that the definiteness required is only such as will be sufficient for the party to prepare responsive pleadings). (2) When to Raise Others. All references to bills of particulars have been stricken in accordance with changes made in subdivision (e). A defendant is required to serve an answer on plaintiff within 20 days after being served with the summons and complaint. Fed. None of the defenses go to the merits, except the defense of failure to state a claim upon which relief can be granted. (1935) 9107, 9158; N.Y.C.P.A. (1) When Some Are Waived. Due process is not met where a Defendant is unable to read, speak or comprehend the language in which notice to the Defendant is provided. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. P. 1.140 (b) has some defenses that can be raised in a motion to dismiss. A defendant could also consent, or waive objection, to personal jurisdiction more subtly. R. Civ. 12e.231, Case 19; McKinney Tool & Mfg. | Last updated May 11, 2018. A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. Co. (W.D.Mo. For example, the defense of insufficient process can involve the mere assertion that plaintiff omitted the summons or the complaint from otherwise proper processa matter that cannot have much importance to a defendant who obviously knows of the lawsuit or she would not be making the motion. 1944) 58 F.Supp. Q7(b). Please try again. Clipping is a handy way to collect important slides you want to go back to later. For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue. Contact us. But opting out of some of these cookies may affect your browsing experience. See Walling v. Alabama Pipe Co. (W.D.Mo. P. 43(c), the trial court could base factual findings on affidavits submitted by the parties, but would have the discretion to hear oral testimony or require depositions. Practice Book 10-30(a) (2022). (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Compare [former] Equity Rules 12 (Issue of SubpoenaTime for Answer) and 31 (ReplyWhen RequiredWhen Cause at Issue); 4 Mont.Rev.Codes Ann. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. . . P. 12(g)(2) requires a defendant who makes a preliminary motion under Rule 12 to consolidate all of its Rule 12(b) defenses into that motion, the enforcement provision is found in Fed. [i]Actually, defendant is not the only party who can raise these defenses. And it has been urged from the bench that the phrase be stricken. Sally filed a complaint against George and process was served on Day 1. plaintiff bears the burden of establishing the validity of service as governed by Rule 4. P. 12(g)(1). That leaves four rule 12 defenses that by the express provision of Fed. 2000). Similarly, the defense of insufficient service of process can be raised successfully if the plaintiff served an employee of a corporation who was not an officer, managing or general agent, or process agent within the meaning of Rule 4(h)(1)(B). 658 and (1942) 5 Fed.Rules Serv. Sally filed a complaint against George and process was served on Day 1. (b) A motion to dismiss made pursuant to this chapter, whether joined with a motion to quash service or a motion to set aside a default judgment . Plaintiff . Notes of Advisory Committee on Rules1987 Amendment. 12e.231, Case 6 (Our experience . This rule continues U.S.C., Title 28, 80 [now 1359, 1447, 1919] (Dismissal or remand) (of action over which district court lacks jurisdiction), while U.S.C., Title 28, 399 [now 1653] (Amendments to show diverse citizenship) is continued by Rule 15. A motion to dismiss for insufficient service of process is properly brought to challenge the method of serving the process. It is a wise practice to secure a true copy of the process server affidavit of service from the original court file before making a motion to dismiss. This cookie is set by GDPR Cookie Consent plugin. Co. (E.D.Pa. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. It's also possible for the court to dismiss a case "sua sponte," meaning without being prompted by either party. Click Accept to continue using the site with recommended settings, or choose Decline to disable optional cookies. (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. Subdivision (g). The party may join all motions under Rule 12 into a single motion. Sample complaint for rescission of contract in California. 1469, and 1512 of International Longshoremen's Association v. Southern Pacific Co. (C.C.A.5th, 1942) 131 F.(2d) 605; Lucking v. Delano (C.C.A.6th, 1942) 129 F.(2d) 283; San Francisco Lodge No. H2nwc`VH'@ For provisions that the defendant may demur and answer at the same time, see Calif.Code Civ.Proc. R. Civ. The motion to dismiss must be filed with the court and served on the other party. Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. Federal Rule of Civil Procedure 12(b) lists seven defenses that may be raised by the defendant prior to answering the complaint. (Remington, 1932) p. 160, Rule VI (e). A party waives any defense listed in Rule 12(b)(2)-(5) by: (ii)include it in a responsive pleading or in an amendment allowed by rule 15(a)(1) as a matter of course. R. Civ. P. 12(g)(1). . Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions. If you enjoy this tell others about it. See also Bowles v. Gabel (W.D.Mo. den. 1944) 144 F.(2d) 528, cert. FRCP41(a)allows for voluntary dismissal, whichcan be filed by the plaintiffwith and without a court order. Insufficient service of process in Florida can cause the lawsuit to be dismissed. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. Computer-Aided Exercises in Civil Procedure by Center for Computer-Assisted Legal Instruction is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted. Dec. 1, 1993; Apr. A motion under this rule may be joined with any other motion allowed by this rule. No. 4. P. 12(b). A motion to dismiss is a formal request for a court to dismiss a case. 1958). You can read the details below. U.S.C., Title 28, 763 [now 547] (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. Has George waived the venue defense? 1939) 27 F.Supp. 2). The estimated completion time for this computer-assisted exercise is one hour; it can be done in more than one sitting. 1, 9 Fed.Rules Serv. This of course follows from the fact that jurisdiction over the subject matter is granted by constitution and statutes, not by action of the parties. 196 0 obj <>/Filter/FlateDecode/ID[<84BBEC874A696F44B0FEDD0446DF474F><29EC5CA5322BA84EB40AC9C26284A221>]/Index[183 22]/Info 182 0 R/Length 72/Prev 22263/Root 184 0 R/Size 205/Type/XRef/W[1 2 1]>>stream Q8. 1940) 34 F.Supp. :&}Dhhnq+@# 10t|OY3}PBpU\2(f3qZ$JdSoCu~fEq(NF#p{mYRf(>6*_4. See generally [former] Equity Rules 29 (DefensesHow Presented), 33 (Testing Sufficiency of Defense), 43 (Defect of PartiesResisting Objection), and 44 (Defect of PartiesTardy Objection); N.Y.C.P.A. The defense of lack of subject-matter jurisdiction is considered nearsacred because it protects the division of powers between federal courts and state courts inherent in federalism. Some of the defenses are trivial, and some are highly important. (Doc. Since George made no preliminary motion, he did not waive any defenses by failing to join them with other defenses. (C.C.A.8th, 1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d) 908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th, 1940) 113 F.(2d) 356; Chicago Metallic Mfg. Also before the Court is a Motion to Dismiss for Lack of Jurisdiction due to Insufficient Service of Process by Defendant Pitts.5 (ECF No. 12(b)(5)]. You were in a car accident a while ago, which didn't seem to result in that much damage to the other car or driver; but, now you've been sued by the other driver. A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. Reasons for dismissal vary. B. The words or to prepare for trialeliminated by the proposed amendmenthave sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. This can be seen in some older decisions that refer to defendant having appeared specially.. 2004). These cookies ensure basic functionalities and security features of the website, anonymously. On the other hand, many courts have in effect read these words out of the rule. R. Civ. While this is not a viable option for all defendants and there's no guarantee that it will be granted, there are a variety of reasons why you may want to file a motion to dismiss. Under Fed. Should defendant choose that course of defense, and the motion prove unsuccessful, defendant is allowed 10 days after service of the court's unfavorable decision on the motion to answer. Yes, with minor qualifications. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. object before filing an answer, any defects in service are deemed waived. On Day 45, George filed his answer, which was timely because the Rule 12(b)(1) motion extended the time for filing the answer until 10 days after notice of the courts action on the motion. Neither the parties nor the court took any further action until Day 25, when George attempted to amend his answer to include the defense of improper venue. 25, r.r.
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