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1 Susan L. Oliver, Esq. (SBN: 160902)
Conner J. Holdsworth, Esq. (SBN: 298821)
2 TYSON & MENDES, LLP
5661 La Jolla Boulevard ELECTRONICALLY
3 La Jolla, CA 92037 F I L E D
Telephone: (858) 459-4400 Superior Court of California,
4 County of San Francisco
Attorneys for Defendant UBER TECHNOLOGIES, INC. 06/06/2019
5 Clerk of the Court
BY: VANESSA WU
Deputy Clerk
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 BRIAN GORNE and ADRIENNE WALKER, ) Case No. CGC-19-575852
) [Complaint Filed: May 9, 2019]
12 Plaintiff, )
)
13 v. ) POINTS AND AUTHORITIES IN
) SUPPORT OF UBER TECHNOLOGIES,
14 UBER TECHNOLOGIES, INC., a Delaware ) INC.’S MOTION TO DISMISS THE
Corporation, AND THE FIRST DOE ) CASE BASED ON FORUM NON
15 THROUGH ONE HUNDRETH DOE, ) CONVENIENS
INCLUSIVE, )
16 ) Date: July 1, 2019
Defendants. ) Time: 9:30 A.M.
17 ) Dept: 302
) Judge: Hon. Ethan Schulman
18 ) Reservation No. 05160701-07
) Trial Date: Not Set
19
20 I. INTRODUCTION
21 This case arises out of an alleged incident that occurred entirely in Seattle, Washington—
22 over 800 miles away from San Francisco. Plaintiff Brian Gorne (hereinafter “Mr. Gorne”) alleges
23 that on October 1, 2017, he requested a ride through the rider-version of the Uber Application.
24 (See Declaration of Conner Holdsworth (hereinafter “Holdsworth Decl.”), Ex. 1, Complaint, ¶
25 131.) Mr. Gorne alleges he entered the vehicle of Sharif Soajima (“Mr. Soajima”) and the two got
26 into a verbal altercation (Id., Ex. 1 132.) Mr. Gorne alleges he no longer wanted to ride with Mr.
27 Soajima, and exited the vehicle. (Ibid.) After exiting the vehicle, Mr. Gorne alleges Mr. Soajima
28 approached him and stabbed plaintiff in the chest. (Id., Ex. 1 at ¶ 133.) As a result, Mr. Gorne was
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POINTS AND AUTHORITIES IN SUPPORT OF UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS THE CASE BASED
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1 transferred to a hospital in Seattle where he received treatment. (Id., Ex. 1 at ¶ 142.) Mr. Gorne
2 also alleges he was required to undergo an additional surgery on January 18, 2019, which also
3 occurred in Seattle. (Id., Ex. 1 at ¶ 146.) The incident was investigated by the Seattle Police
4 Department and criminal charges were filed against Mr. Soajima in the Superior Court of
5 Washington for King County. (Id. at ¶ 5.)
6 Even though this matter has nothing to do with San Francisco, or California, plaintiffs filed
7 a Complaint in this Court against Uber Technologies, Inc (hereinafter “Uber”). Interestingly, the
8 alleged assailant, who is believed to be a Washington resident, is known to plaintiffs, and is
9 identified in the Complaint, is not named as a defendant. The Complaint alleges negligence,
10 negligent hiring, negligent supervision, negligent retention; fraud; battery; assault; intentional
11 infliction of emotional distress; negligent infliction of emotional distress; and loss of consortium.
12 Plaintiff clearly is forum shopping by filing this motion in California instead of Washington,
13 hoping to receive a more favorable outcome in California, as Washington does not allow for
14 punitive damages, which are an item of damages they are claiming. This is blatant forum
15 shopping. The Court should exercise its discretion to stay and/or dismiss Plaintiff’s complaint
16 based on the doctrine of forum non conveniens. Uber must also assume the primary alleged culprit
17 and the individual being criminally charged as a result of this incident was identified in the
18 complaint but not named as a defendant simply as a means of improper forum shopping, not to
19 obtain justice for the injuries alleged. Further, as discussed below, Mr. Soajima is the most critical
20 witness besides plaintiffs themselves and is presumably not subject to personal jurisdiction in
21 California.
22 Plaintiffs are both residents and citizens of Washington. (Holdsworth Decl., Ex. 1 at ¶ 8.)
23 Upon information and belief, Mr. Soajima also resides in and is a citizen of Washington, and he
24 signed-up to utilize the driver-version of the Uber App in Washington. (Id. at ¶ 6.) The Seattle
25 Municipal Code Section 6.310 governs Transportation Network Company (rideshare) and
26 independent rideshare driver operations within the City of Seattle, as was the case here. (Id. at
27 7.) Pursuant to the applicable regulations in Seattle, Mr. Soajima applied for and was provided
28 with a for-hire license by King County Records and Licensing Services. (Id. at ¶ 6.)
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POINTS AND AUTHORITIES IN SUPPORT OF UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS THE CASE BASED
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1 Additionally, any and all potential witnesses to the incident likely reside in Washington,
2 including witnesses who saw Mr. Gorne the evening of the incident, such as plaintiffs’ friends and
3 family, the paramedics, and Mr. Gorne’s medical providers. Further, Mr. Gorne reported the
4 incident to the Seattle Police Department and, upon information and belief, all investigating
5 officers are residents of Washington. (Holdsworth Decl., ¶ 8.) Moreover, plaintiffs’ complaint is
6 based entirely on Mr. Soajima’s conduct—the alleged assault and battery—that took place entirely
7 in Washington.
8 Further plaintiffs allege venue is proper is San Francisco pursuant to Code of Civil
9 Procedure section 395, subd. (a), because it is the location of Uber’s principal place of business.
10 However, Section 395, subd. (a), also provides the following:
If the action is for injury to person or personal property or for death from wrongful
11 act or negligence, the superior court in either the county where the injury occurs or
12 the injury causing death occurs or the county where the defendants, or some of
them reside at the commencement of the action, is a proper court for the trial of
13 the action. (Civ. Code, § 395, subd. (a).)
14 Accordingly, although there was some basis to file the Complaint in this Court, the statute upon
15 which plaintiffs rely for venue specifically identifies the county where the injury occurred as a
16 proper venue for the action.
17 The only substantive connection the parties have with San Francisco is that Defendant
18 maintains its principal place of business there. (Id. at ¶ 4.) Plaintiffs attempt to plead around the
19 foregoing realities by alleging Mr. Gorne operates a business in California and pays state income
20 tax in California. (Id. at Ex. 1, ¶ 19.) However, these averments are only relevant to establish
21 personal jurisdiction, not venue. (See Civ. Code, § 410.10; Int’l Shoe v. Washington (1945) 326
22 U.S. 310; compare Civ. Code, § 395.) For these reasons, and as set forth in further detail below,
23 the Court should dismiss this matter based on the doctrine of forum non conveniens.
24 II. THE COURT SHOULD DISMISS THIS ACTION
25 Forum non conveniens is “an equitable doctrine invoking the discretionary power of a court
26 to decline the exercise of jurisdiction (to stay or dismiss) ithas over a transitory cause of action
27 when it believes the action may be more appropriately and justly tried elsewhere.” (Stangvik v.
28 Shiley, Inc. (1991) 54 Cal.3d 744, 751.) The doctrine was first applied by the California Supreme
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1 Court in Price v. Atchison, T & S.F. Railway Co. (1954) 42 Cal.2d 457. In Price, the Supreme
2 Court aptly described the need for the doctrine:
3 There are manifest reasons for preferring residents in access to often
overcrowded Courts, both in convenience and in the fact that broadly
4 speaking it is they who pay for maintaining the Courts concerned. . .
. [T]he injustices and the burdens on local courts and taxpayers, as
5 well as on those leaving their work and business to serve as jurors,
which can follow from an unchecked and unregulated importation of
6 transitory causes of action for trial in this state . .. require that our
courts, acting upon the equitable principles . . . exercise their
7 discretionary power to decline to proceed in those causes of action
which they conclude, on satisfactory evidence, may be more
8 appropriately and justly tried elsewhere.
9 (Price, supra, 42 Cal.2d at 582-84 [internal citations and quotations omitted].)
10 The doctrine of forum non conveniens is now codified by California Code of Civil Procedure
11 section 418.10, subdivision (a), which provides:
12 When a court upon motion of a party or its own motion finds that in
the interest of substantial justice an action should be heard in a
13 forum outside this state, the court shall stay or dismiss the action in
whole or in part on any conditions that may be just.
14
15 Code of Civil Procedure section 418.10, subdivision (b) further provides that a defendant may
16 respond to a complaint by moving to stay or quash the action on the ground of inconvenient forum.
17 In determining whether the action should be heard in a different forum, the court engages in
18 a two-step analysis. (Stangvik, supra, 54 Cal.3d at 751.) The court first must determine whether a
19 suitable alternative forum exists. If a suitable alternative forum exists, the court must consider the
20 private interests of the parties and the public interest in keeping the case in California. (Id. at 751,
21 754.) Here, Washington is a suitable alternative forum, and all factors—both public and
22 private—weigh in favor of requiring plaintiffs to litigate in that forum.
23 A. Washington is a Suitable Alternative Forum
24 Washington is not just a suitable forum, it is the best possible alternative forum. A
25 “suitable” alternative forum is one in which a valid judgment may be obtained against defendant.
26 (Stangvik, supra, 54 Cal.3d at 752). The defendant must either be subject to service of process
27 there or be willing to submit to jurisdiction as a condition of the court granting the motion. (Id.)
28 Also, the action must not be barred by the statute of limitations. (Id.; Shiley Inc. v. Super. Ct.
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1 (1992) 4 Cal.App.4th 126, 132-133.) Additionally, the alternative forum must provide some
2 remedy for the claim sued upon. The other forum’s law need not be as favorable to plaintiffs as
3 local law. (Stangvik, supra, 54 Cal.3d at 764; see also Boaz v. Boyle & Co., Inc. (1995) 40
4 Cal.App.4th 700, 711.) Critically, “[t]he fact that a plaintiff will be disadvantaged by the law of
5 [the alternative forum], or that the plaintiff will probably or even certainly lose does not render the
6 forum 'unsuitable[.]" (Boaz v. Boyle & Co., Inc. (1995) 40 Cal.App.4th 700 ,711.)
7 Simply put, the alternative forum’s law is irrelevant unless the remedy provided is so
8 clearly inadequate or unsatisfactory that it is no remedy at all. (Stangvik, supra, 54 Cal.3d at 764;
9 Piper Aircraft Co. v. Reyno (1981) 454 U.S. 235, 254.) The “no remedy at all” exception applies
10 only in rare circumstances, “such as where the alternative forum is a foreign country whose courts
11 are ruled by a dictatorship, so that there is no independent judiciary or due process of law.” (Shiley
12 Inc., supra, 4 Cal.App.4th at 134-35.) The “no remedy at all” exception has “never been applied
13 to a sister state.” (Id. [emphasis added].)
14 Here, Washington provides a suitable and appropriate alternative. First, Uber is subject to
15 jurisdiction there, as it engages business within the state. (See Wash. Rev. Code, § 4.28.185)
16 Second, Washington provides a remedy for plaintiffs’ alleged injuries, and none of their claims are
17 barred by the statute of limitations. As set forth above, plaintiffs allege causes of action for
18 negligence, fraud, battery, assault, intentional infliction of emotional distress, negligent infliction
19 of emotional distress, and loss of consortium. The applicable statutes of limitation in Washington
20 range from two to three years. (Id. at §§ 4.16.080 & 4.16.100.) Plaintiffs’ complaint alleges the
21 underlying incident occurred on October 1, 2017, thus, no statute of limitations has run on any of
22 their claims. In short, Washington is a suitable alternative forum.
23 B. The Public and Private Interest Factors Weigh in Favor of Trying This Matter
in Washington
24
25 The court must weigh the private and public interests involved once it determines the
26 alternative forum is suitable. The jurisdiction with the greater interest in the litigation normally
27 should bear the burden of entertaining it. (Stangvik, supra, 54 Cal.3d at 758.) “[P]rivate and public
28
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POINTS AND AUTHORITIES IN SUPPORT OF UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS THE CASE BASED
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1 interest factors must be applied flexibly, without giving undue emphasis to any one element.” (Id.
2 at 753.)
3 1. Private Interest Factors
4 The private interest factors include (i) access to proof, (ii) cost of obtaining witness
5 attendance, and (iii) the availability of compulsory process for attendance of unwilling witnesses.
6 The private interest factors are primarily focused on making “trial and the enforceability of the
7 ensuing judgment expeditious and relatively inexpensive.” (Stangvik, supra, 54 Cal.3d at 751;
8 Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1465; Hansen v. Owens–Corning Fiberglas
9 Corp. (1996) 51 Cal.App.4th 753, 760.)
10 Here, the private interest factors weigh heavily in favor of litigating this matter in
11 Washington. As set forth above, this matter arises out of an alleged assault and battery occurring
12 entirely in Seattle, Washington. Both plaintiffs and the alleged assailant all reside in Washington.
13 (Holdsworth, Decl., ¶ 4 & Ex. 1, ¶ 8.) Nearly every potential witnesses to the incident, including
14 people with whom plaintiffs had been with on the night of the incident and Mr. Gorne medical
15 providers all presumably reside in Washington. Further, the police department to which he
16 reported the incident is located in Washington. Finally, plaintiffs may choose to call their
17 family members, friends, and other individuals to testify about their purported injuries. If this case
18 remains in California, presumably none of those witnesses can be compelled to appear in
19 California; neither can Mr. Soajima – the most critical witness besides the plaintiffs themselves.
20 Even assuming they could be compelled, the witnesses would be required to travel great distances
21 and at great cost to participate in the case. Thus, the cost of obtaining attendance of the out-of-
22 state witnesses will be much greater than if the case were litigated in Washington, where those
23 witnesses likely reside.
24 Additionally, nearly all documentary evidence is located in Washington. This includes Mr.
25 Gorne’s medical records, video evidence, the police report and corresponding investigative report,
26 and any documents filed in the related criminal matter. As such, to the extent Uber seeks to obtain
27 this evidence, it will be required to issue out-of-state subpoenas for records. This will require Uber
28 to submit every single subpoena to the county clerk in Washington. (Wash. Rev. Code, §
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POINTS AND AUTHORITIES IN SUPPORT OF UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS THE CASE BASED
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1 5.51.020.) The clerk will then issue a subpoena for service upon the person to which the foreign
2 subpoena is directed. (Ibid.) This procedure will cause undue expense and burden on Defendants
3 and is, quite simply, an unnecessary waste of time.
4 C. The Public Interest Factors Weigh in Favor of Trying this Matter in Washington
5 The public interest factors include (i) avoidance of overburdening local courts with
6 congested calendars, (ii) protecting the interests of potential jurors so that they are not called upon
7 to decide cases in which the local community has little concern, and (iii) weighing the competing
8 interests of California and the alternate jurisdiction in the litigation. (Stangvik, 54 Cal.3d at 751,
9 758.)
10 Here, too, the public interest factors weigh heavily in favor of granting the motion.
11 Dismissing the action on forum non conveniens grounds would aid in avoiding the potential
12 overburdening of the Court’s calendar. This Court certainly has a significant amount of cases on its
13 docket without having to hear a case that has almost no relation to San Francisco. Moreover, the
14 people of San Francisco should not be forced to endure a lengthy trial related to matters that are
15 unrelated to their community. Indeed, there is no reason San Francisco residents should be called
16 upon to decide whether Uber complied with Washington rules and regulations regarding the
17 applicable Seattle regulations or whether Uber is somehow responsible for the alleged assault and
18 battery of plaintiff, which occurred in Seattle. Moreover, the independent third-party
19 transportation provider signed up to utilize the driver version of the Uber App in Washington and
20 resides in Washington. (Holdsworth Decl., ¶ 6.) He entered into a licensing agreement with
21 Rasier, LLC (Uber’s subsidiary) which does not contract with independent third-party
22 transportation provider’s in California. (Ibid.) Seattle city ordinances govern certain requirements
23 to operate as a transportation network company as to Rasier, LLC, showing the city’s interest in
24 this arena on behalf of the public. (Sea. Mun. Code § 6.310.)
25 The people of Seattle, on the other hand, have not only an interest, but also the right to
26 have this matter heard in their state. The allegations in plaintiffs’ complaint involve a local
27 controversy— that is, the alleged assault and battery of a Washington resident by another
28 Washington resident—that should be decided by members of the community in which the assault
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1 allegedly took place. By filing in California, plaintiffs are attempting to forum shop to presumably
2 prevent Uber from having access to necessary witnesses and evidence and get the best results
3 for her lawsuit, as many reported verdicts are significantly lower than those in California.
4 Accordingly, the public interest factors weigh in favor of granting Uber’s Motion to
5 Dismiss, as California has no interest in this litigation. Indeed, as the Hansen court observed:
6 California courts ...have little or no interest in litigation involving
injuries incurred outside of California by nonresidents. It seems
7 unduly burdensome for California residents to be expected to serve
as jurors on a case having so little to do with California. The
8 competing interests of California and [the alternative forum] strongly
weigh in favor of litigating this matter in [the alternative forum].”
9
(Hansen, 51 Cal.App.4th at 760.)
10
D. The District Court for the Northern District of California Recently Granted a Motion
11 to Transfer Venue in a Similar Case from California to Minnesota
12 In May 2017, Uber moved to transfer venue in a case involving similar allegations from the
13 Northern District of California to Minnesota. (See Holdsworth Decl., Ex. 2, Order Granting
14 Motion to Transfer in Jane Doe v. Uber Technologies, Inc., N.D. Cal. Case No. 17-cv-00950-
15 WHO.) Judge Orrick granted the motion, ruling Uber met its burden of demonstrating the case
16 should be transferred to a district Court in Minnesota for the convenience of the parties and
17 witnesses, and in the interest of justice.
18 More specifically, Judge Orrick ruled the plaintiff’s choice of forum deserves minimal
19 deference as she was not a California resident, and because the disputed events giving rise to the
20 action did not occur in California. He also held it would be cheaper and more efficient to litigate
21 the case in Minnesota where the overwhelming majority of witnesses identified by the parties
22 lived. Notably, he found Uber’s defense would be hampered by an inability to subpoena critical,
23 out-of-state witnesses to testify at trial. Regarding access to evidence, Judge Orrick ruled this
24 factor weighed strongly in favor of transfer because all critical evidence regarding the assault,
25 battery, and damages suffered was located in Minnesota and because essential witnesses resided in
26 Minnesota and were not subject to the Court’s subpoena power. Finally, Judge Orrick found
27 Minnesota’s interest in the case “substantial” because all activities giving rise to the claim occurred
28 there, and because Minnesota has a greater interest in protecting Minnesota citizens. Further, he
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1 found Minnesota’s interest in the conduct of corporations comparable to the interests of
2 Californians.
3 The same rationale applies here. Plaintiffs are not California residents, and none of the
4 alleged events occurred in California. Also, as in the Northern District case, it would be far
5 cheaper and more efficient to litigate this case where the majority of witnesses and evidence are
6 located, and where Uber has the ability to subpoena those witnesses. Finally, Washington’s
7 interest in this case is substantial as the alleged events happened there, and Washington has a
8 greater interest in protecting Washington residents.
9 E. The Superior Court of the State of California, County of San Francisco Recently
Granted a Motion to Dismiss in a Similar Case
10
In August 2017, Uber moved to dismiss an action involving similar allegations to those
11
alleged here. (See Holdsworth Decl., Ex. 3, Order Granting Motion to Transfer in Jane Doe v.
12
Uber Technologies, Inc., Case No. CGC-17-556481.) Judge Kahn granted the motion and
13
dismissed the action, ruling Uber met its burden of demonstrating that dismissal of the case was
14
warranted because plaintiff has no connection with California. (Henderson, supra, 77 Cal.App.3d
15
at 598.)
16
More specifically, the Judge found Michigan was a suitable alternative forum because
17
defendants were subject to Michigan court’s jurisdiction and none of plaintiff Jane Doe’s claims
18
would be barred by statute of limitations. Plaintiff’s argument that Michigan is not suitable forum
19
because of recently enacted legislation limiting the circumstances in which transportation network
20
companies like Uber are deemed employers of their drivers lacked merit. “[S]o long as there is
21
jurisdiction and no statute of limitations bar, a forum is suitable where an action can be brought,
22
although not necessarily won.” (Shiley, Inc., supra, 4 Cal.App.4th at 132.) “[A] showing that
23
recovery would be more difficult or even impossible in a foreign forum does not demonstrate that
24
the alternative forum is inadequate.” (Id. at 133 [internal quotations omitted].)
25
The Judge found that public and private interest factors weighed in favor of the case being
26
venued in Michigan rather than in California, as most if not all the potential witnesses resided in
27
Michigan and most of the documentary evidence would also be in Michigan. The Judge also ruled
28
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POINTS AND AUTHORITIES IN SUPPORT OF UBER TECHNOLOGIES, INC.’S MOTION TO DISMISS THE CASE BASED
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1 that Michigan had a much greater interest in resolving a dispute between Michigan residents and
2 the way Uber operates in Michigan.
3 III. THE COURT SHOULD DISMISS PLAINTIFFS’ COMPLAINT
4 When a trial court determines a forum other than California is more convenient, it has the
5 option either to dismiss or to stay the California action. (Code Civ. Proc., § 410.30, subd. (a).)
6 Staying the action and retaining jurisdiction permits the court to make such further orders as might
7 become appropriate. (Stangvik, supra, 54 Cal.3d at p. 750.) Because dismissing an action, as
8 distinguished from staying the action, “results in California's loss of jurisdiction over the matter, it
9 has long been the rule . . . that an action brought by a California resident may not be dismissed on
10 grounds of forum non conveniens except in extraordinary circumstances.” (Century Indemnity Co.
11 v. Bank of America (1997) 58 Cal.App.4th 408, 411.) But when, as here, the plaintiffs are not
12 California residents, the trial court has discretion to dismiss the action outright. (See Baltimore
13 Football Club, Inc. v. Superior Court (1985) 171 Cal.App.3d 352, 364-365; Henderson v. Superior
14 Court (1978) 77 Cal.App.3d 583, 598.) For all of the reasons stated herein, California has no
15 interest in this litigation, and the Court should, therefore, dismiss plaintiffs’ complaint.
16 IV. CONCLUSION
17 When all pertinent factors are considered, Washington is a far more appropriate and
18 convenient forum for all of the parties and witnesses to this action, and for the people of San
19 Francisco. As such, this matter should be litigated in Washington. For all of the foregoing
20 reasons, the Court should dismiss plaintiffs’ complaint based on the doctrine of forum non
21 conveniens. If, however, the Court is not inclined to dismiss the complaint, then at a minimum, it
22 should stay the action, pending plaintiffs’ filing of a complaint in Washington.
23
Dated: June 6, 2019 TYSON & MENDES LLP
24
25
By:
26
Susan L. Oliver
27 Conner J. Holdsworth
Attorneys for Defendant UBER TECHNOLOGIES, INC.
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