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Case 1:07-cv-00026-OWW-TAG Document 25 Filed 04/30/2007 Page 1 of 13

1 Mark A. Wasser CA SB #060160


LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser@markwasser.com
5 Bernard C. Barmann, Sr.
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
9
10 Attorneys for Defendants County of Kern,
Peter Bryan, Irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragland, Toni Smith
and William Roy
12
13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15
16 DAVID F. JADWIN, D.O. ) Case No.: 1:07-cv-26
)
17 Plaintiff, ) ANSWER TO FIRST AMENDED
) COMPLAINT
18 vs. )
)
19 COUNTY OF KERN, et al., )
)
20 Defendants. )
)
21
22
23 Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
24 Abraham, Scott Ragland, Toni Smith and William Roy answer the First Amended Complaint,
25 together with the allegations in the First Supplemental Complaint, as follow,
26 1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.
27 2. Defendants admit the allegations contained in paragraph 4.
28 3. Defendants deny the allegations contained in paragraph 5.

ANSWER TO FIRST AMENDED COMPLAINT

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1 4. Defendants admit the allegations contained in paragraphs 6 and 7.


2 5. In response to the allegations contained in paragraph 8, Defendants admit that
3 Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
4 during most of the time alleged in the Complaint. Defendants deny the remaining allegations
5 contained in paragraph 8.
6 6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.
7 7. Defendants deny all the allegations contained in paragraph 15.
8 8. In response to the allegations contained in paragraph 16, Defendants admit that
9 Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a
10 belief as to the truth of the remaining averments in paragraph 16.
11 9. In response to the allegations contained in paragraph 17, Defendants admit that
12 Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
13 Chair of the Pathology Department. Defendants deny all remaining allegations contained in
14 paragraph 17.
15 10. In response to the allegations contained in paragraph 18, Defendants admit that
16 Plaintiff complained about departmental procedures and policies at Kern Medical Center and
17 interfered with patient care provided by Kern Medical Center and its physicians. Defendants
18 deny all remaining allegations contained in paragraph 18.
19 11. Defendants deny all the allegations contained in paragraphs 19 and 20.
20 12. In response to the allegations contained in paragraph 21, Defendants admit that
21 Plaintiff requested and received multiple leaves of absence and that the terms and conditions of
22 the leaves Plaintiff received are memorialized in writings that speak for themselves. Defendants
23 deny all remaining allegations contained in paragraph 21.
24 13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendants
25 admit that Plaintiff requested and received multiple leaves of absence for multiple reasons and
26 was removed from his position as Chair of the Pathology Department because he was neither
27 working full-time nor present in the hospital. Defendants also admit that Plaintiff has
28 complained about the policies and procedures at Kern Medical Center. Defendants are without

ANSWER TO FIRST AMENDED COMPLAINT

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1 knowledge or information sufficient to form a belief as to the truth of the remaining averments
2 contained in those paragraphs.
3 14. In response to the allegations contained in paragraph 25, Defendants admit that
4 Plaintiff has been provided with the information he requested from the computer that was
5 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
6 25.
7 15. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 26.
9 16. In answer to the allegations contained in paragraph 27, Defendants admit that
10 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
11 paragraph 27.
12 17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
13 that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
14 of Chair of the Pathology Department and that he was compensated and provided with certain
15 benefits pursuant to a written employment agreement, the terms of which speaks for themselves.
16 Defendants deny all remaining allegations contained in paragraphs 28 and 29.
17 18. In response to the allegations contained in paragraph 30, Defendants admit that
18 Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center
19 and to contribute to the overall improvement of the hospital. Defendants deny all remaining
20 allegations contained in paragraph 30.
21 19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
22 admit that the alleged documents speak for themselves and their interpretation is a matter of law.
23 Defendants deny all remaining allegations contained in those paragraphs.
24 20. Defendants admit the allegations contained in paragraph 34.
25 21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
26 admit that the alleged documents speak for themselves and their interpretation is a matter of law.
27 Defendants deny all remaining allegations contained in those paragraphs.
28

ANSWER TO FIRST AMENDED COMPLAINT

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1 22. Defendants are without knowledge or information sufficient to form a belief as to


2 the truth of the averments contained in paragraph 38.
3 23. In response to the allegations contained in paragraph 39, Defendants admit that
4 Plaintiff complained about policies and procedures at Kern Medical Center and that his actions
5 interfered with patient care. Defendants deny all remaining allegations contained in paragraph
6 39.
7 24. In response to the allegations contained in paragraphs 40 and 41, Defendants
8 admit that Plaintiff’s former attorney sent a letter to Bernard Barmann and that Plaintiff met with
9 Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
10 contained in those paragraphs.
11 25. Defendants are without knowledge or information sufficient to form a belief as to
12 the truth of the averments contained in paragraphs 42 and 43.
13 26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,
14 Defendants admit that a disagreement arose between Plaintiff and William Roy regarding the
15 review of pathology reports and that any letters authored by William Roy speak for themselves.
16 Defendants are without knowledge or information sufficient to form a belief as to the truth of the
17 remaining averments in those paragraphs.
18 27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and
19 54, Defendants admit that disputes arose between Plaintiff and other physicians at Kern Medical
20 Center, including some of the Defendants, regarding patient care, the review of pathology reports
21 and hospital policies and procedures. Defendants further admit that any letters authored by
22 Plaintiff or others speak for themselves. Defendants are without knowledge or information
23 sufficient to form a belief as to the remaining averments in those paragraphs.
24 28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,
25 Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
26 prevented appropriate discussion of case management and that other physicians at Kern Medical
27 Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his
28 interference with patient care. Defendants further admit that any letters authored by William

ANSWER TO FIRST AMENDED COMPLAINT

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1 Roy or others speak for themselves. Defendants deny all remaining allegations in those
2 paragraphs.
3 29. Defendants deny all the allegations contained in paragraph 60.
4 30. Defendants are without knowledge or information sufficient to form a belief as to
5 the truth of the averments contained in paragraph 61.
6 31. Defendants deny all the allegations contained in paragraphs 62 and 63.
7 32. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 64.
9 33. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
10 and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
11 Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and
12 procedures and that all such letters speak for themselves. Defendants deny all remaining
13 allegations contained in those paragraphs.
14 34. Defendants deny all the allegations contained in paragraph 73.
15 35. In response to the allegations contained in paragraph 74 and 75, Defendants admit
16 that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants
17 deny all remaining allegations contained in those paragraphs.
18 36. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
19 Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
20 for multiple reasons and that documents authored by Plaintiff and others regarding the reasons
21 for his leaves of absence and the terms of the leaves speak for themselves.
22 37. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
23 Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
24 regarding leaves of absence and that the writings speak for themselves. Defendants deny that
25 Plaintiff engaged in any “whistleblowing activity” and that Plaintiff is or ever was a
26 “whistleblower”. Defendants deny all remaining allegations in those paragraphs.
27 38. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraphs 87 and 88.

ANSWER TO FIRST AMENDED COMPLAINT

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1 39. In response to the allegations contained in paragraphs 89, 90, 91 and 92,
2 Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
3 leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology
4 Department at Kern Medical Center. All such writings speak for themselves. Defendants also
5 admit that on or about July 10, 2006, the Joint Conference Committee voted to remove Plaintiff
6 from his position as Chair of the Pathology Department at Kern Medical Center. Defendants
7 deny all remaining allegations contained in those paragraphs.
8 40. Defendants deny all the allegations contained in paragraph 93.
9 41. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
10 Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base
11 compensation and that Plaintiff continued to send and receive written communications to others
12 regarding his leaves of absence and that those writings speak for themselves. Defendants deny
13 all remaining allegations contained in those paragraphs.
14 42. In response to the allegations contained in paragraph 99, Defendants admit that
15 Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
16 Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
17 remaining allegations contained in paragraph 99.
18 43. Defendants deny all the allegations contained in paragraph 100.
19 44. In response to the allegations contained in paragraphs 101 and 102, Defendants
20 admit that Plaintiff exchanged written correspondence with David Culberson and that those
21 writings speak for themselves. Defendants deny all remaining allegations contained in those
22 paragraphs.
23 45. In response to the allegations contained in paragraph 103, Defendants admit that
24 Plaintiff has been provided with the information he requested from the computer that was
25 previously assigned to him. Defendants deny all remaining allegations contained in paragraph
26 103.
27 46. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraph 104.

ANSWER TO FIRST AMENDED COMPLAINT

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1 47. In answer to the allegations contained in paragraph 105, Defendants admit that
2 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
3 paragraph 105.
4 48. In response to the allegations contained in paragraph 106, Defendants admit that
5 Plaintiff requested and received a reduced work schedule. Defendants deny all remaining
6 allegations contained in paragraph 106.
7 49. Defendants are without knowledge or information sufficient to form a belief as to
8 the truth of the averments contained in paragraph 107.
9 50. In response to the allegations contained in paragraphs 108, 109 and 110,
10 Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
11 Plaintiff’s request for leaves of absence and those writings speak for themselves. Defendants
12 deny all remaining allegations contained in those paragraphs.
13 51. Defendants deny all the allegations contained in paragraph 111.
14 52. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
15 117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
16 regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
17 others to discuss those subjects. All the writings speak for themselves. Defendants deny all
18 remaining allegations contained in those paragraphs.
19 53. Defendants are without knowledge or information sufficient to form a belief as to
20 the truth of the averments contained in paragraphs 118 and 119.
21 54. In response to the allegations contained in paragraphs 120, 121 and 122,
22 Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
23 Plaintiff’s leaves of absence and performance as Chair of the Pathology Department and that
24 those writings speak for themselves. Defendants deny all remaining allegations contained in
25 those paragraphs.
26 55. Defendants are without knowledge or information sufficient to forma a belief as
27 to the truth of the averments contained in paragraph 123.
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ANSWER TO FIRST AMENDED COMPLAINT

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1 56. In answer to the allegations contained in paragraph 124, Defendants admit that
2 Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
3 paragraph 124.
4 57. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
5 128.
6 58. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
7 133 and 134.
8 59. Defendants deny all the allegations contained in paragraph 135.
9 60. Defendants deny all the allegations contained in paragraph 136.
10 61. In response to the allegations contained in paragraph 137, Defendants admit that
11 Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the
12 Pathology Department. Defendants deny all remaining allegations contained in paragraph 137.
13 62. Defendants deny all the allegations contained in paragraphs 138, 139, 140, 141,
14 142 and 143.
15 63. In response to the allegations contained in paragraph 144, Defendants admit that
16 Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
17 Defendants deny all remaining allegations contained in paragraph 144.
18 64. Defendants are without knowledge or information sufficient to form a belief as to
19 the truth of the averments contained in paragraphs 145 and 146.
20 65. Defendants are without knowledge or information sufficient to form a belief as to
21 the truth of the averments contained in paragraphs 147, 148, 149, 150 and 151.
22 66. Defendants are without knowledge or information sufficient to form a belief as to
23 the truth of the averments contained in paragraph 152.
24 67. Defendants incorporate herein, all of their responses to paragraphs 1 through 152,
25 inclusive.
26 68. In response to the allegations contained in paragraph 154, Defendants admit that
27 Health and Safety Code §1278.5 speaks for itself and that its interpretation is a matter of law.
28 Defendants deny all remaining allegations contained in paragraph 154.

ANSWER TO FIRST AMENDED COMPLAINT

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1 69. Defendants deny all the allegations contained in paragraphs 155, 156 and 157 and
2 further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”.
3 70. Defendants are without knowledge or information sufficient to form a belief as to
4 the truth of the averments contained in paragraph 158.
5 71. Defendants incorporate herein, their responses to paragraphs 1 through 158,
6 inclusive.
7 72. In response to the allegations contained in paragraph 160, Defendants admit that
8 Labor Code §1102.5 speaks for itself and that its interpretation is a matter of law. Defendants
9 deny all remaining allegations contained in paragraph 160.
10 73. Defendants deny all the allegations contained in paragraphs 161, 162, 163 and
11 164 and further deny that Plaintiff made any “whistleblowing reports”.
12 74. Defendants are without knowledge or information sufficient to form a belief as to
13 the truth of the averments contained in paragraph 165.
14 75. Defendants incorporate herein, their responses to 1 through 165, inclusive.
15 76. In response to the allegations contained in paragraphs 167, 168 and 169,
16 Defendants admit that Government Code §12945.2(a)(1) and Title 2 of California Code of
17 Regulations §7297.7(a) and §7297.2(c) speak for themselves and that their interpretation is a
18 matter of law. Defendants deny all remaining allegations contained in those paragraphs.
19 77. Defendants deny all the allegations contained in paragraphs 170 and 171.
20 78. Defendants are without knowledge or information sufficient to form a belief as to
21 the truth of the averments contained in paragraph 172.
22 79. Defendants incorporate herein, their responses to paragraphs 1 through 172,
23 inclusive.
24 80. In response to the allegations contained in paragraph 174, Defendants admit that
25 29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) speak for themselves and that their
26 interpretation is a matter of law. Defendants deny all remaining allegations contained in
27 paragraph 174.
28 81. Defendants deny all the allegations contained in paragraphs 175, 176 and 177.

ANSWER TO FIRST AMENDED COMPLAINT

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1 82. Defendants are without knowledge or information sufficient to form a belief as to


2 the truth of the averments contained in paragraph 178.
3 83. Defendants incorporate herein, their answers to paragraphs 1 through 178,
4 inclusive.
5 84. In response to the allegations contained in paragraphs 180, 181, 182, 183, 184,
6 185, 186 and 187, Defendants admit that interpretation of the California Family Rights Act is a
7 question of law. Defendants deny all remaining allegations contained in those paragraphs.
8 85. Defendants deny all the allegations contained in paragraphs 188, 189 and 190.
9 86. Defendants are without knowledge or information sufficient to form a belief as to
10 the truth of the averments contained in paragraph 191.
11 87. Defendants incorporate herein, their responses to paragraphs 1 through 191,
12 inclusive.
13 88. In response to the allegations contained in paragraph 193, Defendants admit that
14 interpretation of the California Fair Employment and Housing Act is a question law. Defendants
15 deny all remaining allegations remaining in paragraph 193.
16 89. Defendants deny all the allegations contained in paragraphs 194 and 195.
17 90. Defendants are without knowledge or information sufficient to form a belief as to
18 the truth of the averments contained in paragraph 196.
19 91. Defendants incorporate herein, their responses to paragraphs 1 through 196,
20 inclusive.
21 92. Defendants deny all the allegations contained in paragraph 198.
22 93. Defendants are without knowledge or information sufficient to form a belief as to
23 the truth of the averments contained in paragraph 199.
24 94. Defendants incorporate herein, their responses to paragraphs 1 through 199,
25 inclusive.
26 95. Defendants deny all the allegations contained in paragraph 201.
27 96. Defendants are without knowledge or information sufficient to form a belief as to
28 the truth of the averments contained in paragraph 202.

ANSWER TO FIRST AMENDED COMPLAINT

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1 97. Defendants incorporate herein, their responses to paragraphs 1 through 202,


2 inclusive.
3 98. In response to the allegations contained in paragraph 204, Defendants admit that
4 interpretation of the Fourteenth Amendment to the United States Constitution is a question of
5 law. Defendants deny all remaining allegations contained in paragraph 204.
6 99. Defendants deny all the allegations contained in paragraphs 205, 206, 207, 208,
7 209, 210, 211, 212 and 213.
8 100. Defendants are without knowledge or information sufficient to form a belief as to
9 the truth of the averments contained in paragraph 214.
10 101. Defendants incorporate herein, their responses to paragraphs 1 through 214,
11 inclusive.
12 102. Defendants deny all the allegations contained in paragraphs 216, 217, 218, 219,
13 220, 221, 222, 223 and 224.
14 103. Defendants are without knowledge or information sufficient to form a belief as to
15 the truth of the averments contained in paragraph 225.
16 104. Defendants incorporate herein, their responses to paragraphs 1 through 225,
17 inclusive.
18 105. In response to the allegations contained in paragraphs 227 and 228, Defendants
19 admit that interpretation of the Code of Federal Regulations, including 20C.F.R. §541.118(1) and
20 §541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
21 paragraphs.
22 106. Defendants deny all the allegations contained in paragraphs 229, 230 and 231.
23 As and for a first affirmative defense, Defendants allege that Plaintiff’s First
24 Supplemental Complaint and each and every purported claim contained therein fails to state a
25 claim upon relief can be granted.
26 As and for a second affirmative defense, Defendants allege that this Court lacks subject
27 matter jurisdiction over Plaintiff’s alleged claims.
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ANSWER TO FIRST AMENDED COMPLAINT

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1 As and for a third affirmative defense, Defendants allege that Defendants’ actions as
2 alleged in the First Supplemental Complaint were privileged and that Defendants and each of
3 them are, therefore, immune from liability.
4 As and for a fourth affirmative defense, Defendants allege that California Civil Code
5 section 47 immunizes Defendants and each of them from liability for the matters alleged in the
6 First Supplemental Complaint.
7 As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
8 employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
9 intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed
10 to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
11 believes he sustained.
12 As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as
13 alleged in the First Supplemental Complaint occurred more than one year before Plaintiff
14 commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
15 limitations established in California Code of Civil Procedures §340.
16 As and for a seventh affirmative defense, Defendants allege that Plaintiff’s injuries, as
17 alleged in the First Supplemental Complaint occurred more than two years before Plaintiff
18 commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
19 limitations established in California Code of Civil Procedures §335.1.
20 As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
21 adequate administrative remedies which he failed to exhaust and that his claims are, therefore,
22 barred.
23 As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
24 them have qualified immunity for each and every claim alleged in the First Supplemental
25 Complaint and that Plaintiff’s claim are, therefore, barred.
26 WHEREFORE, Defendants pray that Plaintiff take nothing by way of his First
27 Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
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ANSWER TO FIRST AMENDED COMPLAINT

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1 against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
2 together with such other and further relief as the Court deems just.
3 Dated, April 30, 2007 LAW OFFICES OF MARK A. WASSER
4 By: /s/ Mark A. Wasser
5 Mark A. Wasser
Attorney for Defendants, County of Kern, et al.
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ANSWER TO FIRST AMENDED COMPLAINT

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