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2nd of my current cases so I thought I would start a new thread to keep them separate.  

1. Who is the named plaintiff in the suit? Portfolio

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg & Reis

3. How much are you being sued for? $7500

4. Who is the original creditor? (if not the Plaintiff) CitiBank

5. How do you know you are being sued? (You were served, right?) Served 8/26

6. How were you served? (Mail, In person, Notice on door) in person

7. Was the service legal as required by your state? Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Oakland County, Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2/2018.

11. When did you open the account (looking to establish what card agreement may be applicable)? 12/2007.

12. What is the SOL on the debt? 6 years.

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). They served me have 21 days to answer

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? See attached below

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. – Statements, cardholder agreement, JDB Bill of Sale and Assignment,

18.  How did you find out about this site? originally google

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I am filing  my answers/affirmative defense, notice of arbitration election and proposed order on Monday.

I have used the same template I am using in my other case (Cavalry lawsuit) but wording in the Portfolio Complaint was different.

I feel like I am getting the hang of this with the invaluable information found on this forum  but thanks in advance for any suggestions anyone might have with the attached docs. 

Portfolio Answers and affirmative defense.docx Portfolio notice of arb.docx PORTFOLIO Proposed Order COURT.docx

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@arbitration or chapter 7 (IANAL) I question whether or not you should admit to Complaint Paragraphs 2-3. Are you certain that the cause of action occurred in Oakland County? Could it have occurred where Citibank is located, or where payment was expected but never received? Could that place have a different statute of limitations? I don't know. Do you? If I didn't know for certain where exactly the cause of action (or even the legal definition of cause of action!) occurred, I'd have to answer that I lack information sufficient to form a belief as to the truth of the allegations.

Venue and jurisdiction are 2 separate things. 

600.1621 Venue; determination; exceptions.
Sec. 1621.

   Except for actions provided for in sections 1605, 1611, 1615, and 1629, venue is determined as follows:
  (a) The county in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action.

Venue appears to be something you could admit to as long as you do in fact reside in Oakland County. Jurisdiction is, under Michigan law, probably correct, but what about the arbitration forum? (IANAL) I might admit to venue, but state I lack information sufficient to form a belief as to the truth of the rest of the allegations in Paragraph 3. You might consider including that you have elected arbitration as the proper forum to hear the disputes according to the subject Agreement's arbitration provision. (Plaintiff's Complaint Exhibit_) (IANAL--just a suggestion to ponder or not. I don't think it's necessary to include it.)

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@Brotherskeeper   I haven't updated this thread but a new development has occurred in my case.  I filed the MTC after 8 days of not hearing back from the Plaintiff in regards to my notice of arbitration, unfortunately the pretrial hearing was already scheduled and I could not get a MTC hearing date before that pre trial hearing.  So on 10/17 is the pretrial and on 10/22 the MTC hearing is scheduled.  My concern is the arbitration is good unless a trial has started or a judgement has been ordered...so in Michigan the question is does the "pretrial" hearing count as part of the trial and if so I am thinking I should go ahead and file the arb online before the pretrial date of 10/17 to show the court I went ahead and initiated arb.  Any experience with this issue?

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1 hour ago, arbitration or chapter 7 said:

so in Michigan the question is does the "pretrial" hearing count as part of the trial

No, pre-trial is not the same as the trial. JDB cases rarely go to trial. The JDB usually files a pre-trial dispositive motion--a motion for summary judgment called disposition in Michigan--which, if granted, rules that there are no material facts of the movant's claims in dispute and no trial is necessary. A motion to compel arbitration in your case is a pre-trial motion, the same as a motion to compel answers to discovery requests would be. (IANAL)

I personally would not file the demand in arb before the motion hearing. 

 

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Here is the clause from the cardholder agreement you posted above: 

"Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgment has been entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuitTo choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA."

A trial has not even been scheduled yet, so it hasn't begun. A final judgment has not been entered. To choose arbitration, you may file a motion to compel arbitration, which you have done. Prior to filing the MTCA, you gave the plaintiff the opportunity to stipulate to arb and dismiss its court claims, which they declined to do by not responding to your request to stipulate to the proposed order and waive the hearing. 

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@arbitration or chapter 7 

 

On 9/9/2019 at 2:28 PM, arbitration or chapter 7 said:

The Complaint does not list Breach of Contract which I thought was the standard? 

IANAL. The complaint you posted appears to be a breach of contract cause of action. Paragraphs 6-9 allege elements of a breach of contract. An account stated cause of action alleges a statement for the balance claimed was sent and never disputed or paid. Typically, there's an affidavit the JDB files with the complaint. 

From the agreement you posted above:

"Except as stated below, all claims are subject to arbitration, no matter what legal theory they're based on..."  Whether the cause of action is breach of contract or account stated, the arbitration clause permits you to elect arb. 

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Received in the mail today the PRA attorney's reply to my MTCA asking for its denial.  Attached is their response to the MTCA.  

Bottom line is they are claiming I cannot elect arbitration because I waited too long and have still not filed and that I have elected litigation in District Court rather than arbitration. Also mentions that I caused Plaintiff prejudice because of failure to timely file arbitration.  Our MTCA hearing is October 22nd which is the earliest date the clerk had to hear this motion when I filed it.

arbitration response.pdf

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Rule 2.116 Summary Disposition

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

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@arbitration or chapter 7 I don't remember if you've seen this or not, but it is a good overview of this topic:

Compelling and Staying Arbitration in Michigan

Michigan public policy favors arbitration. When considering an application to compel or stay arbitration, Michgan courts generally place the burden on the party seeking to avoid arbitration, not the party seeking to arbitrate (see Altobelli v. Hartmann, 884 N.W.2d 537, 543, reh’g denied, 881 N.W.2d 474 (2016), and cert. denied, 137 S. Ct. 580 (2016) (citing McKinstry v. Valley Obstetrics–Gynecology Clinic, PC, 405 N.W.2d 88 (1987))).

INTERSECTION OF THE FAA AND MICHIGAN LAW
Because the FAA preempts state law only to the extent that state law contradicts federal law, the FAA does not prevent Michigan state courts from, among other things, applying state contract law to determine whether the parties have entered into an arbitration agreement (see Altobelli, 884 N.W.2d at 542-43 (applying Michigan contract law principles to determine scope of arbitration clause)).
If an agreement falls under the FAA, the Michigan state courts apply the federal standard for arbitrability when determining whether to compel or stay arbitration, rather than evaluating these threshold questions under Michigan state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); 

SCOPE OF ARBITRATION AGREEMENT
When interpreting an arbitration agreement, Michigan courts apply state contract principles to determine the parties’ intent based on the plain and ordinary meaning of the agreement’s language (see Altobelli, 884 N.W.2d at 542; Scodeller v. Compo, 2017 WL 2791452, at *2 (Mich. App. Jun. 27, 2017)).

Waiver
Michigan courts disfavor waiver of the contractual right to arbitrate (see Universal Academy v. Berkshire Dev., Inc., 2017 WL  2664789, at *5 (Mich. App. June 20, 2017); Madison Dist. Pub. Sch. v. Myers, 637 N.W.2d 526, 529 (2001)). A party resisting arbitration based on the other party’s alleged waiver bears a heavy burden of proof and must demonstrate the other party:

  • Knew of its exiting right to arbitrate or compel arbitration.
  • Acted inconsistently with the right to arbitrate.
  • Caused prejudice to the party.

(See Madison Dist., 637 N.W.2d at 529 (citing Burns v. Olde Discount Corp., 538 N.W.2d 686 (1995)).)

A party may waive the right to arbitrate either:

  • Explicitly, by affirmatively stating it will not arbitrate (see Nexteer Auto. Corp. v. Mando Am. Corp., 886 N.W.2d 906, 909 (2016), appeal denied, 891 N.W.2d 474 (2017), reconsideration denied, 894 N.W.2d 550 (Mich. 2017)). 
  • Implicitly, by engaging in court litigation (see Madison Dist., 637 N.W.2d at 529).

The more actively a party participates in litigation, the greater the risk of implicitly waiving the right to arbitrate. A party may implicitly waive its right to arbitrate by failing to demand or assert the right to arbitration when the party, for example:

  • Files pleadings in court.
  • Engages in litigation discovery.

(See Madison Dist., 637 N.W.2d at 529-30, 533.)

 

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@arbitration or chapter 7 Here's the first case they cite in their response. It won't shock you to learn it doesn't support their waiver argument in your case: 

Hurley v. Deutsche Bank Trust Co. Ams., 610 F.3d 334, 339 (6th Cir. 2010).

'"This Court examines arbitration language in a contract in light of the strong federal policy in favor of arbitration, resolving any doubts as to the parties' intentions in favor of arbitration." Id. (citing Great Earth Cos., Inc. v. Simons, 288 F.3d 878 (6th Cir.2002)). Because of the presumption in favor of arbitration under the Federal Arbitration Act,[2] we will not lightly infer a party's waiver of its right to arbitration. O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 355 (6th Cir. 2003) (quoting Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993)). However, a party may waive an agreement to arbitrate by engaging in two courses of conduct: (1) taking actions that are completely inconsistent with any reliance on an arbitration agreement; and (2) "delaying its assertion to such an extent that the opposing party incurs actual prejudice." Id. at 356 (quoting Germany v. River Terminal Ry. Co., 477 F.2d 546, 547 (6th Cir.1973) (per curiam) and citing Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 131 (2d Cir.1997)); see also Manasher v. NECC Telecom, 310 Fed.Appx. 804, 806 (6th Cir.2009); Gen. Star Nat'l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir.2002).

 

339 We find that both factors indicating waiver are present in this case. With regard to the first factor, Defendants have taken actions that are completely inconsistent with any reliance on an arbitration agreement. Over the course of more than two years between when Plaintiffs initiated this lawsuit and when Defendants submitted their motion to compel arbitration, Defendants have consistently and actively litigated this action in court. See Manasher, 310 Fed.Appx. at 806 (holding that the defendant had waived its right to arbitrate "by actively participating in litigation for 339*339 almost a year without asserting that it had a right to arbitration"). Defendants have not only responded to actions taken by Plaintiffs, but they have filed multiple dispositive and non-dispositive motions of their own, including motions to dismiss, motions for summary judgment, and a motion to change venue. By filing a motion to change venue, Defendants proactively selected the forum in which they wished to defend against Plaintiffs' claims. As the district court found:

Although this case has been pending in this district for about fifteen months, it dates back to May 2, 2007, when Plaintiffs filed suit in the Eastern District of Michigan. Thus, it has been pending 26 months, during which time Orlans filed two dispositive motions, joined in Deutsche Bank's motion for change of venue, attended a Rule 16 scheduling conference and a settlement conference, and filed numerous other motions and documents in defense of Plaintiffs' claims. Although Orlans had the mortgage documents since the inception of the lawsuit, it took no action to assert its alleged right to arbitrate until after the Court issued an unfavorable decision in its March 13, 2009, Opinion and Order.

(Dist. Ct. R.E. 189 at 3-4).

In three recent cases, we have held that each defendant waived its right to arbitrate by failing to assert that right in a timely fashion and instead participating in litigation-related activities. In General Star National Insurance Co. v. Administratia Asigurarilor de Stat, this Court held that the defendant waived its right to arbitrate after waiting 17 months before attempting to enforce the arbitration clause. 289 F.3d at 438. The defendant was asserting its purported right to arbitrate in the context of moving to set aside the default judgment that had been entered against the defendant for failing to respond to the complaint. In finding that the defendant had waived its right to arbitrate, we noted that "for 17 months, [the defendant] remained idle while [the plaintiff] incurred the costs associated with this action. [The defendant], moreover, sought arbitration only after the district court had entered a default judgment against it." Id.

In O.J. Distributing, Inc. v. Hornell Brewing Co., this Court held that the defendant waived its right to arbitrate by engaging in negotiations with the plaintiff for approximately 15 months — while at the same time denying the existence of the agreement which contained the arbitration provision — before asserting its right to arbitrate. 340 F.3d at 357. See also Manasher, 310 Fed.Appx. at 806 (holding that the defendant had waived its right to arbitrate by engaging in discovery and motion practice for a year before filing a motion to compel arbitration).

In the instant case, Defendants have waited even longer than the defendants in each of those three cases to assert their purported right to arbitrate and have engaged in significantly more dispositive motion practice and litigation-related activities. Likewise, Defendants did not attempt to enforce their arbitration rights until after the district court entered an unfavorable decision. Cf. Rush v. Oppenheimer & Co., 779 F.2d 885, 890 (2d Cir. 1985) (holding that the defendant had not waived its arbitration right in part because "[t]his is not an instance in which `a party sensing an adverse court decision [is, in effect, allowed] a second chance in another forum'")."

[snip]

"With regard to the second factor, Defendants have delayed asserting their right to arbitrate to such an extent that they have actually prejudiced Plaintiffs. For more than two years before Defendants attempted to compel arbitration, Plaintiffs incurred the costs of active litigation in two federal courts. Plaintiffs have employed four attorneys, undergone extensive discovery, argued four summary judgment motions, and been subjected to a change in venue at Defendants' request. See Doctor's Assocs., 107 F.3d at 131 (recognizing that a party waives the right to arbitrate when it delays invoking that right such that the opposing party incurs "unnecessary delay or expense")."

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On 10/9/2019 at 4:52 PM, Brotherskeeper said:

Here is the clause from the cardholder agreement you posted above: 

"Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgment has been entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuitTo choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA."

A trial has not even been scheduled yet, so it hasn't begun. A final judgment has not been entered. To choose arbitration, you may file a motion to compel arbitration, which you have done. Prior to filing the MTCA, you gave the plaintiff the opportunity to stipulate to arb and dismiss its court claims, which they declined to do by not responding to your request to stipulate to the proposed order and waive the hearing. 

2016 Michigan Supreme Court ruling: 

Altobelli v Hartmann, 499 Mich 284, 294-295; 884 NW2d 537 (2016).

"Arbitration is a matter of contract." Kaleva-Norman-Dickson Sch. Dist. No. 6 v. Kaleva-Norman-Dickson Sch. Teachers' a$$'n, 393 Mich. 583, 587, 227 N.W.2d 500 (1975). Accordingly, when interpreting an arbitration agreement, we apply the same legal principles that govern contract interpretation. See F.J. Siller & Co. v. City of Hart, 400 Mich. 578, 581, 255 N.W.2d 347 (1977). Our primary task is to ascertain the intent of the parties at the time they entered into the agreement, which we determine by examining the language of the agreement according to its plain and ordinary meaning. See Miller-Davis Co. v. Ahrens Constr., Inc., 495 Mich. 161, 174, 848 N.W.2d 95 (2014)."

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"There is no showing on these facts that defendants have at any time acted inconsistently with their claim of right to arbitration. Rush v Oppenheimer & Co, 779 F2d 885 (CA 2, 1985). We believe any prejudice suffered by plaintiff in terms of time and expense, although unfortunate, was self-inflicted. Fisher, p 698. Plaintiff chose the forum in violation of his agreement to arbitrate disputes. The strong federal policy in favor of enforcing arbitration agreements in transactions affecting commerce requires the conclusion that defendants did not waive their right to arbitration."

 Kauffman v Chicago Corp, 187 Mich App 284, 292; 466 NW2d 726 (1991).(citing Fisher v A G Becker Paribas Inc, 791 F2d 691, 698 (CA 9, 1986)).

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@arbitration or chapter 7 

Plaintiff states, "Defendant is not permitted to pursue actions in two different forums simultaneously, and Plaintiff has been prejudiced as a result of the threat of having to litigate the case twice in two different forums at the same time." (Pl's. Br.) Defendant is not pursuing actions in two different forums simultaneously. Defendant was served a Summons and Complaint filed by Plaintiff. Defendant did not "elect litigation in District court." (Pl's. Br.) Defendant was required to file his Answer to Plaintiff's Complaint in order to avoid a default judgment. Notwithstanding a.) his Answer's arbitration as Affirmative Defense 1, b.) his arbitration election notice to Plaintiff requesting Plaintiff "dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration," and c.) the attached Proposed Order to stipulate to Defendant's Motion served prior to the Motion's filing, 9 U.S. Code § 3 requires a stay of the trial action pending arbitration:

"If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." (emphasis added).

Plaintiff is under no such threat of having to litigate this case twice "at the same time" if this Court grants this Motion. (Pl's. Br.)

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@arbitration or chapter 7 These are their Response Brief arguments:

1.)  Defendant failed to take affirmative steps to engage in arbitration.

2.)  Defendant has taken action inconsistent with the arbitration clause.

3.)  In response to the Complaint, Defendant should have filed an arbitration in an arbitration forum to start the arbitration.

4.)  This is what is required to preserve Defendant's claim to arbitration.

5.)  Defendant's failure to timely file arbitration caused Plaintiff prejudice.

6.)  Plaintiff is also prejudiced by the threat of having to litigate the case twice in 2 different forums at the same time. 

7.)  Defendant has waived his right to compel arbitration.

8.)  Defendant has elected litigation in District Court rather than arbitration.

9.)  Defendant is now barred by an estoppel argument. 

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I am still working on a way to add that the AAA Consumer Demand for Arbitration form verbiage that asks that you file a copy of the court order for arbitration (if ordered).  I would think this would show the Court that the extra time it takes to file a MTCA (and any replies)  is another factor in making sure the arbitration forum will accept your case vs not having a court order.  The form includes the following:

7. Send a copy of this completed form to the AAA together with:

• A clear, legible copy of the contract containing the parties’ agreement to arbitrate disputes;

• The proper filing fee (filing fee information can be found in the Costs of Arbitration section of the Consumer Arbitration Rules); and

• A copy of the court order, if arbitration is court-ordered.

 

The summary disposition rules state that the Reply Brief must be confined to just a rebuttal of the arguments but I have included a background section to cover the timeline since PRA claims I have delayed the process, I believe this background info combined with the argument section shows the Court the delay argument made by PRA is ridiculous.

 

Still in rough draft form so any suggestions/critiques are welcomed!

reply brief portfolio.docx

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On 10/12/2019 at 10:28 AM, Brotherskeeper said:

Rule 2.116 Summary Disposition

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

I just wanted to repost this so you see that MCR 2.116 (G)(a)(iii) permits you, without leave of the court, to file a reply brief.

MikeB35 is under Ohio rules which require a motion for leave to file a reply. 

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A quick update in between travel this week to update this thread.

Attaching the final version of the Reply Brief which I used in my case against PRA.  This Reply Brief was in response to PRA asking the Court to deny my MTCA (their response is above). 

Recap on this case, PRA claimed MTCA should not be accepted based on the following argument:

1. I hadn't filed an arbitration request directly with AAA yet and instead chose the litigation route by choosing to file an Answer and Motion in court.  PRA attorney was adamant that arbitration had to be filed as soon as I received the Complaint.  Attorney chose to ignore the arb agreement language which clearly stated the opposite. 

The Reply Brief responds to this claim by the PRA attorney.

Thank you to @Brotherskeeperfor all the time, thoughts and support on this case as it led to a very favorable outcome 

I will update this thread later this week with all the details for those that find themselves facing the same argument by the JDB.

reply brief final no name.docx

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