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Case 2:07-cv-02513-GMS Document 1680 Filed 05/18/16 Page 1 of 7

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John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
Telephone: (602) 263-1700
Fax: (602) 200-7846
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com
Attorneys for Defendant Joseph M. Arpaio in
his official capacity as Sheriff of Maricopa
County, AZ

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Manuel de Jesus Ortega Melendres, et al.,
Plaintiff,

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v.

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Joseph M. Arpaio, et al.,
Defendant.

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NO. CV 07-02513-PHX-GMS
DEFENDANT ARPAIO’S MOTION
TO MODIFY THE DEADLINE TO
FILE RESPONSIVE
MEMORANDA TO THE COURT’S
MAY 13, 2016, FINDINGS OF
FACT
(Assigned to the Honorable G. Murray
Snow)

Defendant Joseph M. Arpaio respectfully requests the Court to modify its
deadline for the Parties to file responsive memoranda to the Court’s May 13, 2016,
Findings of Fact (Doc. 1677).1

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Unless otherwise explicitly stated otherwise, any reference to the Court’s
“Findings of Fact” refer to the Court’s May 13, 2016, Findings of Fact (Doc. 1677).
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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION.

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This Court’s May 13, 2016, Findings of Fact invited the Parties to comment

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on their views of the appropriate relief that should be imposed against Sheriff Arpaio,

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Chief Deputy Sheridan, Chief Sands, Lieutenant Sousa, and MCSO as a whole in light of

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the Court’s Findings of Fact. [Doc. 1677 at ¶ 912]. In addition, the Court also invited the

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Parties to address “any other matters that they desire to bring to the attention of the

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Court.” [Id.]. Defendant Arpaio accepts the Court’s invitation, but requires additional

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time to adequately and fairly prepare his responsive memorandum.

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II.

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DEFENDANT ARPAIO REQUIRES ADDITIONAL TIME TO FILE A
RESPONSIVE MEMORANDUM TO THE COURT’S FINDINGS OF FACT.
A.

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Defendant Arpaio had no basis to object to the Court’s original
proposed time to file responsive memorandum.

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On April 27, 2016, the Court informed the Parties that “the Findings of

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Facts will be coming out in the near future” and gave notice to the Parties that they would

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have an opportunity to file responsive memoranda no later than May 24, 2016, with a

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hearing to follow on May 31, 2016. Without knowing the extent of the Court’s Findings

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of Fact, the issues the Court would request Defendant Arpaio to brief, and whether the

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Court would substantially enlarge deadlines after issuing its Order, Defendant Arpaio had

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no basis to object to the dates at that time. The Court then did not issue its Findings of

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Fact until two weeks after this notice, and only modified the Parties deadline to file

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responsive memoranda by two and a half days, to May 27th at noon. In light of the

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voluminous nature of the record, the Court’s 162 page Order, and in the interest of all

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parties involved in this litigation, Defendant Arpaio respectfully requests that this Court

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modify its deadlines for responsive memoranda on the remedies to be imposed and other

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matters he may wish to bring to the Court’s attention as a result of the Court's Findings of

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Fact.

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B.

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The length, complexity, and issues involved in the Court’s Findings of
Fact necessitates additional time for Defendant Arpaio to adequately
file a responsive memorandum.

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As this Court must be painfully aware, the Court’s Order is 162 pages,

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containing over 900 individual paragraphs. This proceeding also involved over 20 days of

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trial testimony amounting to approximately 5,000 pages of trial transcripts and over 300

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admitted exhibits. The Court’s Findings of Fact repeatedly makes reference to these

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transcripts and exhibits. Despite the staggering size of this record and the length of the

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Court’s Findings of Fact, the Court only provided the Parties fourteen calendar days to

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file responsive memoranda. Simply put, two weeks is not enough time for Defendant

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Arpaio to do an adequate job of reviewing, analyzing, researching, and addressing the

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legality and other aspects of the remedies suggested by the Court and raise “any other

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matters” Defendant Arpaio may wish to bring to the Court’s attention.

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responsive pleadings to motions filed in the normal course of litigation, which ordinarily

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are much shorter than 162 pages, generally do not have such short deadlines when time

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for service is included, see e.g., LRCiv. 7.2(c), 56.1(d), nor does Defendant Arpaio see the

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need for undue haste in light of the existing remedial measures already ordered by the

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Court.

Moreover,

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In addition, counsel for Defendant Arpaio notes that during most of week of

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May 16th- May 20th their time will be consumed with overseeing and participating in the

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United States Department of Justice’s inspection of MCSO’s jails pursuant to the terms of

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the parties’ settlement agreement in United States v. Maricopa County, 2:12-cv-00981-

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ROS.

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disadvantage in their ability to prepare and adequately respond to the Court’s Findings of

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Fact given the current deadlines imposed by the Court.

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C.

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Defendant Arpaio’s counsel respectfully submit that they are at a severe

The Parties previously had roughly three months to analyze and
respond to the Court’s original Findings of Fact.
Further evidence of the necessity of an extension of the Court’s deadline to

file responsive memoranda, Defendant Arpaio respectfully refers the Court to the briefing

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that occurred in response to the Court’s original Findings of Fact. The Court issued its

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original Findings of Fact on May 24, 2013. [Doc. 579]. The Court then held a status

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conference shortly after its Findings of Fact and issued an order that a joint memorandum

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would be filed by the parties, almost three months later, on August 16, 2013, with

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additional supplemental memoranda to be filed by August 28, 2013. [See Doc. 582]. The

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Court’s current Findings of Fact is not only more extensive than its original Findings of

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Fact, but also premised on many more days of trial testimony and issues that, in at least

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some respects, are more complex.

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D.

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Providing more time to file responsive memoranda may foster
agreement among the Parties on the remedies to be imposed, or at a
minimum, narrow the scope of conflict between the parties on the
suggested remedies.
During the briefing between the parties regarding the Court’s original

Findings of Fact, the parties were able to discuss potential remedies and agree on some
remedies that would account for the Court’s Findings of Fact. [See Doc. 592, 592-1]. To
the extent the parties were unable to agree to terms, the Parties requested, and this Court
agreed, that the Parties could file supplemental memoranda on the “competing positions
on the terms of the proposed consent decree.” [See Docs. 582, 595, 596]. A hearing was
held on these issues, and the Court made its determination on the proper remedies after the
proceeding. [See Docs. 599, 606].
Defendant Arpaio sees no reason that a similar procedure should not be
employed now. This Court’s Findings of Fact provides several suggested remedies for the
violations the Court found. [See Doc. 1677 at pp. 155-161]. Without any meaningful
opportunity for the parties to discuss these suggestions with both their clients and each
other, Defendant Arpaio does not anticipate that the current schedule for briefing on the
Court’s findings and suggested remedies will leave room for any meaningful discussion
on remedies to be imposed during or after the Court’s May 31, 2016 hearing.
Accordingly, permitting additional time for the Parties to discuss remedies in light of the
Court’s most recent Findings of Fact may result in the recommendation of remedies to the
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Court as to which there is little or no disagreement among the parties, hopefully

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narrowing the remedial issues needing to be further litigated and decided by this Court.

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E.

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Defendant Arpaio also needs additional time to review and analyze the
Court’s 900+ findings of fact to determine whether additional concerns
need to be raised.

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Again, this Court’s Findings of Fact invited Defendant Arpaio to raise “any

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other matters” with the Court. [Doc. 1677 at ¶ 912]. Defendant Arpaio take this language

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in the Court's Order to permit him to raise substantive challenges to the Court’s Findings

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of Fact, to the extent he believes they exist, for the Court’s consideration of these

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challenges before ordering remedial relief and/or deciding whether it should recommend

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criminal contempt. Accordingly, Defendant Arpaio submits that the two week deadline to

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file responsive briefing to the Court’s Findings of Fact also denies them a meaningful

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opportunity to review the factual and legal basis for the Court’s Findings of Fact, analyze

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whether any “other matters” need to be addressed, and then draft their arguments in a

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cogent form for the Court’s consideration.

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F.

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Granting additional time for the Parties to file responsive memoranda
will also assist the Court.
Permitting the parties additional time to file responsive memoranda will also

assist the Court. If the deadlines set forth by the Court are not modified, the Court will
only have four calendar days (over Memorial Day weekend) to consider approximately
100 pages of responsive briefing to the Court’s Findings of Fact from the Parties.
Although the Court appears up to the challenge, Defendant Arpaio believes that the
briefing extension requested will permit the Court additional time to thoroughly review
and analyze the issues raised in the Parties’ briefing prior to a hearing wherein arguments
can be held on these issues. Again, with the additional time requested by Defendant
Arpaio, such arguments could be narrowed upon agreement of the parties.
G.

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There is no prejudice in briefly delaying the deadline to file responsive
memoranda to the Court’s Findings of Fact.
Defendant Arpaio also submits that, as stated above, an extension in the

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amount of time for the Parties to file responsive memoranda does not prejudice Plaintiffs

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or the Court. This is not a stay request. Moreover, the Court’s Monitor is overseeing

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MCSO’s compliance with the Court’s existing injunctive order and, as this Court and

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Plaintiffs have recognized, MCSO is no longer violating the Court’s preliminary

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injunction. [See Doc. 1677 at ¶ 878]. Accordingly, because Defendant Arpaio is merely

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requesting additional time in order to adequately preserve his constitutional and statutory

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rights, the Plaintiff class would not suffer any significant prejudice if the Parties were

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granted a brief extension of time so that they may adequately respond to the Court’s

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Findings of Fact. See Lewis v. Casey, 518 U.S. 343, 358 (1996) (Injunctive relief in a

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class action must be narrowly tailored to the actual harm proven at trial); Int’l Union,

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United Mine Workers of America v. Bagwell, 512 U.S. 821, 827, 833-34 (1994) (the law

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requires progressively greater protections for contempts of complex injunctions that

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necessitate more elaborate and in-depth fact-finding); Rizzo v. Goode, 423 U.S. 362, 378

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(1976) (“Where, as here, a state official’s exercise of authority is attacked, federal courts

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must be mindful of the special delicacy of the adjustment to be preserved between federal

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equitable power and State administration of its own law.”) (quotations omitted); Clark v.

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Coye, 60 F.3d 600, 604 (9th Cir. 1995) (injunctions against state agencies must be

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narrowly tailored to enforce federal constitutional or statutory law only).

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III.

DEFENDANT ARPAIO’S PROPOSED EXTENSION OF TIME.

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Based on the foregoing reasons, Defendant Arpaio respectfully requests the

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Court grant the Parties, at a minimum, 90 days to file responsive memoranda on the

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Court’s May 13, 2016, Findings of Fact. This will permit the parties to discuss, in good

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faith, proposed remedies in light of the Court’s Findings of Fact and present to the Court

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(if agreed upon) a joint briefing outlining areas of remedial agreement for the Court’s

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approval and areas of contention that may necessitate further hearings and/or briefing.

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Moreover, Defendant Arpaio submits that the procedure outlined above may be discussed

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at the upcoming May 31, 2016 hearing, in addition to the other matters the Court intends

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to raise with the Parties.

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IV.

CONCLUSION.

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Based on the foregoing reasons, Defendant Arpaio respectfully requests the

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Court to permit the Parties a minimum of 90 days to file a responsive memoranda to the

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Court’s May 13, 2016, Findings of Fact.2

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DATED this 18th day of May, 2016.

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JONES, SKELTON & HOCHULI, P.L.C.

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By /s/Justin M. Ackerman
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio
and the Maricopa County Sheriff’s Office

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CERTIFICATE OF SERVICE

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I hereby certify that on this 18th day of May, 2016, I caused the foregoing

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document to be filed electronically with the Clerk of Court through the CM/ECF System

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for filing; and served on counsel of record via the Court’s CM/ECF system.

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/s/Karen Gawel

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Defendant Arpaio notes that his request regarding the modification of deadlines
and foregoing procedure for joint briefing is in no way intended and should not be
construed to waive any of Defendant Arpaio’s rights in this Court or at the appellate level
to challenge the accuracy and sufficiency of the Court’s Findings of Fact and the
legitimacy of any future remedies ordered by the Court under constitutional and other
applicable legal standards.
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