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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 1 of 12 Page ID #:9800

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge


Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:


None Present

Attorneys Present for Defendant:


None Present

Proceedings (In Chambers): ORDER RE: MOTIONS IN LIMINE [200] [202]


[203] [204] [209] [210] [211] [212] [213] [218] [238]
Before the Court are the motions in limine filed by both parties from August 30,
2016 through September 6, 2016. Plaintiff filed five Motions in Limine (Docket Nos.
202, 203, 204, 218, 238), Defendant Rose filed five Motions in Limine (Docket Nos.
209, 210, 211, 212, 213), and Defendant Allen filed one Motion in Limine (Docket No.
200). The Court has read and considered the papers on the Motions and held a hearing
on September 20, 2016.
The Court rules as follows:
Plaintiffs Motion in Limine No. 1: GRANTED in part and DENIED in
part.
Plaintiffs Motion in Limine No. 2: GRANTED.
Plaintiffs Motion in Limine No. 3: GRANTED.
Plaintiffs Motion in Limine No. 4: GRANTED, subject to later
modification pending the result of the forthcoming Rule 412(c) hearing.
Plaintiffs Motion in Limine No. 5: DENIED.
Plaintiffs Motion in Limine No. 6: A hearing will take place at the continued
Pretrial Conference, September 29, 2016.
Defendant Allens Motion in Limine: GRANTED.
Defendant Roses Motion in Limine No. 1: DENIED.
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 2 of 12 Page ID #:9801

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

Defendant Roses Motion in Limine No. 2: DEFERRED, pending Plaintiffs


submission of an Offer of Proof.
Defendant Roses Motion in Limine No. 3: GRANTED in part and
DEFERRED in part.
Defendant Roses Motion in Limine No. 4: DEFERRED.
Defendant Roses Motion in Limine No. 5: DENIED.
I.

PLAINTIFFS MOTIONS IN LIMINE


A.

Motion in Limine No. 1 to Exclude Photographs

Plaintiff seeks to preclude Defendants from presenting or offering into evidence


photographs of Plaintiff taken in Las Vegas, Nevada and shared on social media. (See
Defendant Roses Trial Exhibit List (Rose Ex.) (Docket No. 208) Nos. 1045; Baute
Decl. 3 & Ex. A.). Plaintiff objects to the photographs because they were produced
after discovery ended and are irrelevant and prejudicial under Federal Rules of
Evidence 402 and 403.
At the hearing, Defendant Roses counsel assured the Court that the photographs
had been produced immediately upon their receipt. As to the merits, Defendant Rose
contends that the photographs are relevant to proving Plaintiffs state of mind, which
she has placed into controversy by claiming damages for emotional distress. (Docket
No. 226). Defendant Rose states that his expert witness, Dr. Jones, will rely on the
photographs in forming her opinion about Plaintiffs mental condition. Defendant
Rose also intends to call Gabriela Chavez to testify about Plaintiffs conduct and
demeanor after August 2627, 2013, including partying with Plaintiff in Las Vegas in
September 2013. (Opp. at 34).
Photographs of Plaintiffs demeanor in the time following her alleged rape could
be relevant to damages; that is, Plaintiffs mental condition after August 27, 2013, is
relevant to the extent of the emotional distress she was caused. However, the Court
will not permit the introduction of such evidence for purposes of determining liability,
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 3 of 12 Page ID #:9802

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

as it is irrelevant and likely to confuse the jury. Fed. R. Evid. 402, 403. Moreover, the
large quantity of photographs risks becoming cumulative. Fed. R. Evid. 403. The
Court will allow only five photographs to be introduced, and only through the
testimony of Dr. Jones, to the extent her testimony relates to Plaintiffs claimed
emotional distress damages.
Accordingly, Plaintiffs Motion is GRANTED in part and DENIED in part.
B.

Motion in Limine No. 2 to Preclude Testimony about Plaintiffs


Attorney, Brandon Anand

Plaintiff seeks to preclude Defendants from introducing the testimony of Keyana


Lavergne, who testified at her deposition about Plaintiffs attorney, Brandon Anands,
social relationship with Plaintiff. (Docket No. 203, amended Docket No. 217).
Specifically, Plaintiff seeks to preclude testimony about Anands behavior and
demeanor in Plaintiffs presence as irrelevant and prejudicial. (Id.).
Defendant Rose contends that evidence about Plaintiffs failure to contact law
enforcement about her claims early on, despite the fact that she had retained counsel, is
relevant to the validity of Plaintiffs claims. (Docket No. 227). Additionally,
Defendant Rose contends that testimony about Anands social relationship with
Plaintiff is relevant to her credibility. (Id.).
Testimony about Anands social relationship with Plaintiff is wholly irrelevant
to the question of whether Plaintiff consented to have sex with Defendant Rose and his
friends on August 27, and the Court will exclude it. Fed. R. Evid. 402. Defendants
may question Plaintiff about her decision to contact law enforcement without reference
to Plaintiffs relationship with her attorneys at the time. The Court will instruct the
jury on when Plaintiff retained counsel, if the parties so request.
Accordingly, Plaintiffs Motion is GRANTED.

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UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.
C.

Date: September 22, 2016

Motion in Limine No. 3 to Preclude Evidence of Settlement


Discussions

Plaintiffs third motion in limine cryptically states that Defendants Rose,


Hampton and Allen plan to introduce statements and remarks made during settlement
negotiations relating to Plaintiff and Plaintiffs attorney Brandon Anand and argues
that the correspondence [sic] these remarks were made in were within settlement
discussions and are inadmissible under [Rule] 408. (Docket No. 204). Defendant
Rose responds that the Motion in Limine lacks sufficient specificity for Defendant to
properly oppose the motion, but states that he does not oppose Plaintiffs motion with
respect to excluding offers of settlement[,] generally speaking. (Docket No. 228).
Plaintiffs Motion lacks the specificity this Court requires of motions in limine.
(See Docket No. 46). Nevertheless, to the extent that Plaintiffs counsel wishes to
emphasize that evidence of settlement discussions that are inadmissible under Rule
408, the Motion is GRANTED.
D.

Motion in Limine No. 4 to Preclude Discussion of Does Prior


Relationships and Sexual Predispositions

Plaintiff seeks to preclude Defendants from introducing evidence of her prior


relationships and sexual predispositions. (Docket No. 218). Defendant Rose responds
that such evidence is relevant to show consent and to rebut Plaintiffs claims of a
traditional upbringing. (Docket No. 229).
For the time being, Plaintiffs Motion is GRANTED. Any such evidence is
flatly inadmissible under Federal Rule of Evidence 412(a). The Courts order may be
modified, however, pending the outcome of the Rule 412(c) hearing, which will be
held next Thursday, September 29.
//
//
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 5 of 12 Page ID #:9804

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.
E.

Date: September 22, 2016

Motion in Limine No. 5 to Prevent Keyana Lavergne from Testifying

Finally, Plaintiff seeks to preclude Keyana Lavergne from testifying. (Docket


No. 238). Plaintiff does not clearly explain what portion of Lavergnes testimony she
seeks to preclude. (Id.). However, she argues that Lavergnes testimony is an
improper expert opinion under Rule 701, hearsay under Rules 80102, irrelevant under
Rule 401, and prejudicial under Rule 403. (Id.).
Defendant Rose responds that Plaintiffs Motion is untimely and lacks the
specificity this Court requires of motions in limine. (Docket No. 245; see also Docket
No. 46). Defendant Rose further argues that Lavergnes testimony is based on
personal knowledge, and therefore not an improper expert opinion; is the admission of
a party opponent, and therefore not hearsay under Rule 801(d)(2); and is both relevant
and probative, as required by Rules 401 and 402.
Lavergnes testimony about statements made by Plaintiff about the alleged rape
after August 27 are relevant to and probative of her credibility. Fed. R. Evid. 401, 402.
Lavergnes repetition of statements made by Plaintiff are admissible as opposing party
statements under Rule 801(d)(2). Because she has not been qualified as an expert on
the subject, Lavergne may not testify about how a rape victim would or should act in
the immediate aftermath of the rape. See Fed. R. Evid. 702. However, under Rule
701, Lavergne may testify to her own observations of Plaintiffs demeanor and actions
after August 27, as a lay witness. Fed. R. Evid. 701 (requiring that lay witness
testimony in the form of an opinion is limited to one that is rationally based on the
witnesss perception.). It is then for the jury to determine whether Plaintiffs actions
were consistent with rape.
At the hearing, counsel for the defense indicated that Lavergne recently moved
to Miami and may be unavailable to testify at trial. Defendant Rose proposed a
deposition designation date of September 22, objections to be filed by September 27,
and the matter to be heard at the continued Pretrial Conference, scheduled for
September 29. Plaintiffs counsel indicated their consent and the Court will proceed in
this fashion.
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 6 of 12 Page ID #:9805

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

Accordingly, Plaintiffs Motion is DENIED.


F.

Motion in Limine No. 6 to Exclude Expert Opinions by Jayme Jones


Not Included in Her June 20, 2016 Report

Plaintiff filed this motion in limine after the deadline, on the eve of the Pretrial
Conference. The Court had insufficient time to prepare a tentative decision on this
motion and therefore will wait to issue its decision until it hears oral argument on the
motion at the September 29 hearing.
II.

DEFENDANT ALLENS MOTION IN LIMINE

Defendant Allen seeks to preclude Plaintiff from introducing evidence regarding


Defendant Allens telephone calls to massage parlors, escort services, and sex workers
in the weeks following August 27. (Docket No. 200). Defendant Allen contends that
Plaintiff seeks to introduce the phone calls under the theory that individuals who
patronize sex workers are more likely to commit rape. (Id.). Defendant contends that
Plaintiff lacks any sort of expert testimony to support her theory and, alternatively,
contends that the phone calls are improper character evidence Under Rule 404 and
irrelevant and highly prejudicial under Rules 401 and 403. (Id.).
Plaintiff responds that Defendant Allens phone calls to sex workers and sex
establishments around the time of the alleged sexual assault shows that he was seeking
out sex, and his motive and intent was to have sex with anyone during that time
period. (Docket No. 232). Rape is a crime of violence, not desire, and therefore
evidence relating to Defendant Allens sex drive or sexual appetites on and around
August 27, 2013, is irrelevant to the question of whether Plaintiff consented to sex on
that night. Fed. R. Evid. 401. Moreover, the Court agrees with Defendant Allen that
certain segments of the population view with disfavor, if not disgust men who would
inquire about or use the services of sex workers. Given that such evidence is not
probative of Defendant Allens conduct on the night in question, the Court finds that
introduction of such evidence would be unduly prejudicial and would potentially
confuse the jury. Fed. R. Evid. 403
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 7 of 12 Page ID #:9806

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

Accordingly, Defendant Allens Motion is GRANTED.


III.

DEFENDANT ROSES MOTIONS IN LIMINE


A.

Motion in Limine No. 1 to Preclude Plaintiff from Referencing the


Possibility She was Drugged

Defendant Rose seeks to preclude Plaintiff from introducing any evidence or


testimony that she was drugged on August 2627, 2013. (Docket No. 209). Defendant
contends that Plaintiff has adduced no evidence that she was drugged, and therefore
any references to Plaintiffs claim to have been drugged would confuse the issue and
mislead the jury, under Rule 403.
Plaintiff argues that she should be able to present evidence of her level of
intoxication that night because, whether due to drugs or to alcohol, Plaintiffs level of
intoxication is directly relevant to her ability to consent to sex with Defendants.
(Docket No. 233 at 3). At the hearing, Plaintiffs counsel made clear that Plaintiff will
offer testimony that she felt like she had been drugged the night of August 26. Counsel
for all Defendants responded that Plaintiffs intended testimony would be an improper
expert opinion because Plaintiff is not qualified to determine whether she was drugged.
Settled law makes clear that Plaintiff may testify to how she felt the morning of
August 27. [Rule] 602, governing the personal knowledge requirement, and [Rule]
701, governing lay witness opinions, should be read together. Thomas A. Mauet &
Warren D. Wolfson, Trial Evidence 4.7 (6th ed. 2016). Under Rule 602, a witness
may testify to any matter of which the witness has personal knowledge that is, the
witnesss personal observations, experiences, and perceptions. Fed. R. Evid. 602.
Rule 701 permits a lay witness to testify to any matter within the witnesss personal
knowledge, so long as it is not based on scientific, technical, or other specialized
knowledge. Fed. R. Evid. 701. This means that opinion testimony should only be
considered lay and not expert opinion if the average person, having been in the same
position as the witness, could provide the testimony. David P. Leonard et al., The
New Wigmore: A Treatise on Evidence 2.6 (2016); accord United States v. Skeet,
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 8 of 12 Page ID #:9807

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

665 F.2d 983, 98586 (9th Cir. 1982) (noting that lay witness testimony must be
predicated upon concrete facts within [the witnesss] own observation and recollection
that is facts perceived from their own senses (quotation marks omitted)).
Here, Plaintiffs counsel have represented that she will testify as to her own
experiences and feelings the morning of August 27. Because her proposed testimony
is within her personal knowledge, it is not impermissible expert testimony, as defined
in Rule 702. Cf. United States v. Mastberg, 503 F.2d 465, 470 (9th Cir. 1974) (holding
that a lay witness may state [her] opinion that a person appeared nervous or
intoxicated (emphasis added)). To the extent that Plaintiff intends to testify only
about her own feelings or experiences that morning, the Court concludes that her
testimony is admissible. A necessary corollary to this conclusion is that Plaintiff may
not testify about technical or scientific reasons to believe she may have been drugged.
Finally, Defendants will not be prejudiced, as they may rebut Plaintiffs testimony
through cross-examination. Defendants may also offer the testimony of their
designated expert witness.
Accordingly, Defendant Roses Motion is DENIED.
B.

Motion in Limine No. 2 to Preclude Plaintiff from Eliciting Hearsay


Testimony Regarding Her Version of Events

Defendant Rose seeks to preclude Plaintiff from introducing certain testimony of


Tommie McCaster, Deanna Duncans, Claudia Carleo, and Marcella Carleo. (Docket
No. 210). Specifically, Defendant Rose seeks to preclude admission of any testimony
by McCaster, C. Carleo, and M. Carleo about the details of Plaintiffs alleged rape, as
told by Plaintiff. (Id.). Defendant Rose contends that this testimony is inadmissible
hearsay under Rule 802 and unduly prejudicial and cumulative under Rule 403. (Id.).
Defendant Rose also seeks to preclude admission of any testimony by Duncan as to her
knowledge of Defendant Roses requests for group sex, and Plaintiffs refusal to
participate in group sex. (Id.).

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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 9 of 12 Page ID #:9808

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

Plaintiff contends that all of the preceding testimony is admissible as evidence of


her then-existing mental or emotional condition, under Rule 803(3). (Docket No. 234
at 2). Plaintiff views this testimony as directly relevant to the question of whether
she consented to sex on August 2627.
The case most favorable to Plaintiff is Wagner v. Cty. of Maricopa, 747 F.3d
1048, 105253 (9th Cir. 2013) (holding that trial court erroneously excluded a witness
testimony about the victims recollection of being sexually assaulted in prison because
the testimony was admissible not to prove the fact remembered or believed but the
mental feeling of [the victim]). In Wagner, however, the out-of-court declarants
statements were relevant regardless whether his delusional account actually occurred
or not. Id. Here, there is no obvious, independent relevance to Plaintiffs mental or
emotional condition apart from the truth of the allegation of rape.
On the other hand, Defendants appear to have placed Plaintiffs mental state on
the morning of August 27 into play, by submitting testimony that she appeared
happy and normal that morning. Moreover, Defendants claim Plaintiffs failure to
report the rape to the police or her parents after the fact indicate that she did consent to
sex on August 2627. It may be, then, that Plaintiffs statements to her roommates or
colleagues that she had been raped are prior consistent statements, and thus exempt
from the hearsay rule. See Fed. R. Evid. 801(d). But based on Plaintiffs current
description of the witness likely testimony, the Court does not have enough
information to decide one way or the other.
As for Duncans anticipated testimony that Defendant Rose asked Plaintiff to
participate in group sex, such testimony likely would be inadmissible hearsay under
Rule 802. The Court struggles to see how, practically speaking, Duncans could have
personal knowledge of Defendant Roses requests for group sex (and Plaintiffs
refusals of Roses requests) when she does not know him and has never met him.
Again, however, it is unclear what Duncans testimony will be, and thus the Court
cannot determine whether that testimony would qualify for some other hearsay
exception, as Plaintiff urges.
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 10 of 12 Page ID #:9809

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

The foregoing questions simply cannot be resolved based on Plaintiffs vague


descriptions of McCaster, C. Carleo, M. Carleo, and Duncans likely testimony. At the
hearing, the Court requested that Plaintiff submit an offer of proof as to the testimony
of these witnesses, to be heard on September 29. The Court will DEFER its ruling on
Defendant Roses second motion in limine until that date.
C.

Motion in Limine No. 3 to Exclude Exhibits as Irrelevant

Defendant Rose seeks to exclude a number of Plaintiffs proposed exhibits as


irrelevant, under Rule 401, and as prejudicial and cumulative, under Rule 403.
(Docket No. 211).
1.

Exhibit No. 6: Advertisements of Sex Workers Called By


Defendant Allen After the Alleged Attack

The Court agrees with Defendant Rose that this exhibit is irrelevant and unduly
prejudicial under Rules 401 and 403 for the same reasons set out in Part II, supra.
Defendant Roses Motion is GRANTED as to this exhibit.
2.

Exhibit Nos. 8 and 9: Video of Plaintiff at Consent is


Mandatory Event and Video of Plaintiff Watching a Lady
Gaga Performance

At the hearing, Plaintiff agreed to withdraw these exhibits.


3.

Exhibit Nos. 10, 11: Photo and Video of Does PTSD Symptoms

Defendant Rose contends that a photo and video of the PTSD symptoms
Plaintiff claims to have developed as a result of her alleged rape bear only a tenuous
connection to her claims of PTSD. Plaintiff responds that she has claimed damages
due to emotional distress and that the exhibits will be used by her expert witness while
discussing Plaintiffs PTSD symptoms.
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 11 of 12 Page ID #:9810

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

The Court will defer ruling on these exhibits until Plaintiff has submitted them,
under seal, for the Courts review.
//
4.

Exhibit Nos. 15, 16: News Publications and California Supreme


Court Opinions Referencing Dr. Lykissa

Plaintiff has agreed to withdraw these exhibits.


In sum, Defendant Roses Motion is GRANTED in part and DEFERRED in
part.
D.

Motion in Limine No. 4 to Preclude Deanna Duncans Testmiony and


to Preclude Introduction of Plaintiffs Exhibit No. 7

The Court will DEFER ruling on Defendant Roses fourth motion in limine
until after the September 29 hearing, consistent with its ruling in Part III.B, supra.
E.

Motion in Limine No. 5 to Exclude the Testimony of Jacklyn Moreno

Finally, Defendant Rose seeks to preclude Plaintiff from eliciting the testimony
of the testimony of Jacklyn Moreno, the on-site apartment manager at the time of the
alleged rape. (Docket No. 213). Plaintiff expects Moreno will testify that the entrance
doors to Plaintiffs apartment had no buzzer. Defendant contends that this testimony is
unnecessary, as both parties agree that Plaintiffs apartment had no buzzer, citing Rules
401 and 403.
The Court will impose strict time limits on all parties at trial. The Court doubts
that the testimony of this witness, if indeed it is cumulative on an undisputed point, is
something that Plaintiff will pursue. Nevertheless, the decision is hers.
Accordingly, Defendants Motion is DENIED.
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Case 2:15-cv-07503-MWF-JC Document 265 Filed 09/22/16 Page 12 of 12 Page ID #:9811

UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTESGENERAL
Case No. CV-15-07503-MWF-JCx
Title:
Jane Doe v. Derrick Rose, et al.

Date: September 22, 2016

IT IS SO ORDERED.

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CIVIL MINUTESGENERAL
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