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Peterson vs. LaCabe (now Garcia) (Colorado non-resident)


05FLHT

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As reported by Grey Peterson today on Calguns.

 

Response to Plaintiff's MSJ-

 

http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.33.0.pdf

 

AG's cross motion for summary judgement -

 

http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.35.0.pdf

 

I cannot wait for this "in the home" 'excrement' to be dealt with.

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It also seems to me that the AG is arguing that failure to issue a CWP to a non resident does not make the CWP statute unconstitutional. It is the combined statutes of the state and city of Denver that prevent gray from carring not the CWP laws. Since he blames the local and state law which together result in Mr. Peterson's problem, he then argues Mr. Peterson can not overcome the burden to prove those statutes unconstitutional.

 

When two existing statutes deny the exercise of a fundamental right yet either standing alone may pass scrutiny, must one or both fall?

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Where did the CO Att. General get the idea that intermediate scrutiny applies as opposed to strict?

 

Thin air. This seems to be happening a lot lately, especially with "in the home."

 

 

It also seems to me that the AG is arguing that failure to issue a CWP to a non resident does not make the CWP statute unconstitutional. It is the combined statutes of the state and city of Denver that prevent gray from carring not the CWP laws. Since he blames the local and state law which together result in Mr. Peterson's problem, he then argues Mr. Peterson can not overcome the burden to prove those statutes unconstitutional.

 

When two existing statutes deny the exercise of a fundamental right yet either standing alone may pass scrutiny, must one or both fall?

 

Not to mention that CO DOES ACCEPT some non resident permits (i.e. FL) if that person is also a resident of the issuing State. That looks like a clear cut equal protection case to me. Just as the justices opined in Heller and affirmed in McDonald, the Second Amendment may be regulated, but not entirely prohibited. If the City of Denver wants to ban open carry, fine, but it is clearly a complete prohibition to then also ban non-residents from carrying concealed due to no available permits.

 

I also love the AG's arguments regarding the need to protect the public by banning open carry instead of more narrowly criminalizing the unlawful discharging of weapons. I don't really think their smoke and mirrors argument is going to hold up, at least not at a higher appellate court or SCOTUS.

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Where did the CO Att. General get the idea that intermediate scrutiny applies as opposed to strict?

 

 

Not to mention that CO DOES ACCEPT some non resident permits (i.e. FL) if that person is also a resident of the issuing State. That looks like a clear cut equal protection case to me. Just as the justices opined in Heller and affirmed in McDonald, the Second Amendment may be regulated, but not entirely prohibited. If the City of Denver wants to ban open carry, fine, but it is clearly a complete prohibition to then also ban non-residents from carrying concealed due to no available permits.

 

 

They whine a lot in their declarations that they'd have difficulty finding information about my background in Washington State, but they forget the fact that an Alabama resident can carry in Denver just fine, even if they've been convicted of a felony, as there's no background check requirement or even training in the state of Alabama...

 

Just sayin......

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  • 5 months later...

An amicus brief has been filed in (now) Peterson v Garcia on behalf of, among others, Illinois Carry

 

http://www.hoffmang....-2011-06-13.pdf

 

(Courtesy of Calguns)

 

This is great that IC is able to join in this amicus. It is well written.

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An amicus brief has been filed in (now) Peterson v Garcia on behalf of, among others, Illinois Carry

 

http://www.hoffmang....-2011-06-13.pdf

 

(Courtesy of Calguns)

I'm glad I read that. It really challenges the court on their standard of review for the 2A. It also goes to great lengths to prove that the words "and bear" have specific meaning in the 2A.

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I'm glad I read that. It really challenges the court on their standard of review for the 2A. It also goes to great lengths to prove that the words "and bear" have specific meaning in the 2A.

 

 

Yea. Somehow one of the "must haves" we need is a finding by SCOTUS that strict scrutiny applies. If they find any other level of scrutiny applies we are hosed in the courts.

 

If I had to guess I think they are going to craft a special version of strict scrutiny that only applies to the 2A. God only knows what mess we will end up with. Maybe something as bad as the way the 4th is now treated.

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I'm glad I read that. It really challenges the court on their standard of review for the 2A. It also goes to great lengths to prove that the words "and bear" have specific meaning in the 2A.

 

 

Yea. Somehow one of the "must haves" we need is a finding by SCOTUS that strict scrutiny applies. If they find any other level of scrutiny applies we are hosed in the courts.

 

If I had to guess I think they are going to craft a special version of strict scrutiny that only applies to the 2A. God only knows what mess we will end up with. Maybe something as bad as the way the 4th is now treated.

 

In my opinion it won't be any more a special version than that which applies to other fundamental rights. For sure, strict scrutiny will apply to keeping and for the most part bearing, but, as with 1A, etc, certain restrictions will apply. Much like the time-place-manner restrictions placed on the 1st, such will apply to the 2nd.

 

Hopefully those won't entail prior restraint, as we see with most gun control today.

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Just as the justices opined in Heller and affirmed in McDonald, the Second Amendment may be regulated, but not entirely prohibited.

 

This supreme court ruling applies to all the states EXCEPT Illinois. Thanks to Chicago, illinois will never ever allow the law abiding citizen to protect themselves. Keep the sanctuary city status, keep the gangbangers shooting at each other, let the mobs rule the sidewalks and above all keep the citizens defenceless.

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Mac,

 

It'll be a federal judge ordering illinois to recognize LTC. Do not lose heart or faith. We are winning.

 

 

Being as there is no LTC to order IL to recognize it is going to be really hard for a judge to do anything of the sort. In any case the likely chronology if such a thing happened would be to get past the state courts who are almost certainly going to rule against us, although there is a chance that the ILSC gives us a partial victory that will just stall things while the lower courts figure out how to restrict whatever privileges we can get as much as possible.

 

Once we get a loss at the state SC level, it take 2 to 3 years to work its way up to SCOTUS. Maybe longer. Then it has to work its way back down to the trial court for the trial court to decide what remedy is appropriate. That may take another 2 to 3 years. In the meantime - nothing.

 

I think it will come at some point, but unless you have a lot of patience it is best to work the legislative angle. We did somewhat better this year than last year. Maybe after the next election we can push it over the top.

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Bob --

 

since I started watching your posts, i have detected a very defeaytest attitude about how and when things will get done here in Illinois.

 

I would point out the attached dissent from People v. Aguilar in which the judge agreed with the position we have been advocating for, and is at the heart of the Shepard case. This case is now before the Illinois Supreme Court and will be decided in the next 6 months or so.

 

If we can get this out of a Cook County judge, I am optimistic about our future in Illinois.

aguilar dissent.pdf

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Bob --

 

since I started watching your posts, i have detected a very defeaytest attitude about how and when things will get done here in Illinois.

 

I would point out the attached dissent from People v. Aguilar in which the judge agreed with the position we have been advocating for, and is at the heart of the Shepard case. This case is now before the Illinois Supreme Court and will be decided in the next 6 months or so.

 

If we can get this out of a Cook County judge, I am optimistic about our future in Illinois.

 

 

Defeatist - certainly not. realistic about the potential time frame and the potential pitfalls of relying on the courts to solve our problem - yes.

 

We are much better off with a legislative solution.

 

I said this last year and I will reiterate. If we rely on the courts I believe we will get something but the time frame may well be a decade or more to make it practical. The courts are just not very good at crafting remedies for these kind of things, and they work very slowly. It seems almost certain that whatever we got out of the courts would look at Heller and decide that sensitive places are off limits and CC can be banned. I would not be surprised one bit if the first pass we got out of the courts was something akin to the totally useless open carry WI currently has. Chances are they would look at the existing law to determine "sensitive" places. It is so broad and so vague that potentially TIF zones could be included as a sensitive area. You really want Chicago to declare all of Chicago a TIF zone to effectively ban carry in Chicago? It is a strong possibility.

 

Now you are not fighting a ban on carry, you are fighting regulation of carry and SCOTUS has shown considerable friendliness toward that idea in Heller.

 

How do you fight the federal GFSZ law without a LTC? The state courts have no say over that law and in most urban areas there is some kind of school every few blocks.

 

To deal with that problem is going to take a SCOTUS decision that the federal GFSZ law is unconstitutional. Do you really believe that is going to happen? Its already been decided that it is constitutional. I think there is some chance of that happening, but it is not on any near term horizon.

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Defeatist - certainly not. realistic about the potential time frame and the potential pitfalls of relying on the courts to solve our problem - yes.

 

You seem pretty negative to me.

 

We are much better off with a legislative solution.

 

The legislative solution would have been quicker, but it didn't work out so well. Maybe things will change in the Fall or next year, but in the meantime the courts are the open avenue.

 

I said this last year and I will reiterate. If we rely on the courts I believe we will get something but the time frame may well be a decade or more to make it practical. The courts are just not very good at crafting remedies for these kind of things, and they work very slowly. It seems almost certain that whatever we got out of the courts would look at Heller and decide that sensitive places are off limits and CC can be banned. I would not be surprised one bit if the first pass we got out of the courts was something akin to the totally useless open carry WI currently has. Chances are they would look at the existing law to determine "sensitive" places. It is so broad and so vague that potentially TIF zones could be included as a sensitive area. You really want Chicago to declare all of Chicago a TIF zone to effectively ban carry in Chicago? It is a strong possibility.

 

Even if Williams is not granted Cert., there are a plethora of cased already filed and at the appellate level. Earliest for a SCOTUS decision is June 2012, otherwise June 2013.

 

Now you are not fighting a ban on carry, you are fighting regulation of carry and SCOTUS has shown considerable friendliness toward that idea in Heller.

 

No, we are most certainly fighting a prohibition on the right to bear arms (carry). We are looking to have SCOTUS 'say so more plainly' that the right exists outside of the home, for the fundamental right of self defense.

 

How do you fight the federal GFSZ law without a LTC? The state courts have no say over that law and in most urban areas there is some kind of school every few blocks.

 

To deal with that problem is going to take a SCOTUS decision that the federal GFSZ law is unconstitutional. Do you really believe that is going to happen? Its already been decided that it is constitutional. I think there is some chance of that happening, but it is not on any near term horizon.

 

Actually the first GFSZ was ruled unconstitutional by SCOTUS. Congress changed a small portion and passed the legislation again. This second GFSZ has never been challenged, nor has it ever been ruled constitutional. My thoughts are the GFSZ is ripe and will be challenged in the very near future.

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Defeatist - certainly not. realistic about the potential time frame and the potential pitfalls of relying on the courts to solve our problem - yes.

 

You seem pretty negative to me.

 

Understanding and accepting a realistic time frame for the legal process to work is not defeatism. It is just real. You can choose to believe there is a quick fix in the pipes, but there just isn't.

We are much better off with a legislative solution.

 

The legislative solution would have been quicker, but it didn't work out so well. Maybe things will change in the Fall or next year, but in the meantime the courts are the open avenue.

 

Note I did not say quicker. I said better. I don't know what it is you think the courts are likely to give us. It will not be anywhere near as expansive as any LTC would be.

I said this last year and I will reiterate. If we rely on the courts I believe we will get something but the time frame may well be a decade or more to make it practical. The courts are just not very good at crafting remedies for these kind of things, and they work very slowly. It seems almost certain that whatever we got out of the courts would look at Heller and decide that sensitive places are off limits and CC can be banned. I would not be surprised one bit if the first pass we got out of the courts was something akin to the totally useless open carry WI currently has. Chances are they would look at the existing law to determine "sensitive" places. It is so broad and so vague that potentially TIF zones could be included as a sensitive area. You really want Chicago to declare all of Chicago a TIF zone to effectively ban carry in Chicago? It is a strong possibility.

 

Even if Williams is not granted Cert., there are a plethora of cased already filed and at the appellate level. Earliest for a SCOTUS decision is June 2012, otherwise June 2013.

 

I think there is a good chance that we get something in 2012 that starts the ball rolling. But it will not mean that we can strap on our guns and walk down the street the next day. it will still be a felony and the police will still be enforcing AUUW.

Now you are not fighting a ban on carry, you are fighting regulation of carry and SCOTUS has shown considerable friendliness toward that idea in Heller.

 

No, we are most certainly fighting a prohibition on the right to bear arms (carry). We are looking to have SCOTUS 'say so more plainly' that the right exists outside of the home, for the fundamental right of self defense.

 

I was referring to after a court decision that gave us some extremely limited "right" to carry. It is no longer a total ban. It is a much tougher case at that point. Now you have to litigate every square foot of where you are prohibited from carrying. Do you really think open carry is worth anything? It means you can't carry in your car or when the weather is inclement. Is that what you really want? Heller has pretty clearly signaled that concealed carry can be regulated to death if the states want to.

How do you fight the federal GFSZ law without a LTC? The state courts have no say over that law and in most urban areas there is some kind of school every few blocks.

 

To deal with that problem is going to take a SCOTUS decision that the federal GFSZ law is unconstitutional. Do you really believe that is going to happen? Its already been decided that it is constitutional. I think there is some chance of that happening, but it is not on any near term horizon.

 

Actually the first GFSZ was ruled unconstitutional by SCOTUS. Congress changed a small portion and passed the legislation again. This second GFSZ has never been challenged, nor has it ever been ruled constitutional. My thoughts are the GFSZ is ripe and will be challenged in the very near future.

 

I should have said the court told congress what to do to make it constitutional. Yes, you are technically correct that the second version may not have been litigated but when the courts point the legislature in a direction and the legislature follows that direction, that is a pretty good sign that it is going to be hard to undo. As I said though, I think there is some chance of undoing it. OTOH, a court might well say that because people with LTC are more or less exempt from the law, that is good enough. Or they might say that only open carry would be lawful inside a school zone. How does that help us any?

 

I want something that is useful. Not something that can be regulated to the point where it is more trouble than it is worth. As I see it we need to have several things to make carry practical in IL.

 

Some way of dealing with the GFSZ.

 

Some way of dealing with the "sensitive" places issue.

 

Some way of dealing with the home rule problem.

 

We need concealed carry. Open carry is just not real useful in this state.

 

Those are really the worst of our issues, and the cleanest solution to all of them is some kind of LTC legislation. I think the courts are going to be very reluctant to deal with these issues at the lower court level. Particularly the state courts on home rule. Home rule is close to sacred.

 

I think you need to look realistically at what even the most favorable court decision would actually give us. Just as an exercise. What do you think is actually realistic?

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[

I want something that is useful. Not something that can be regulated to the point where it is more trouble than it is worth. As I see it we need to have several things to make carry practical in IL.

 

Some way of dealing with the GFSZ.

 

Some way of dealing with the "sensitive" places issue.

 

Some way of dealing with the home rule problem.

 

We need concealed carry. Open carry is just not real useful in this state.

 

Those are really the worst of our issues, and the cleanest solution to all of them is some kind of LTC legislation. I think the courts are going to be very reluctant to deal with these issues at the lower court level. Particularly the state courts on home rule. Home rule is close to sacred.

 

I think you need to look realistically at what even the most favorable court decision would actually give us. Just as an exercise. What do you think is actually realistic?

 

First things first, we need to secure the right (Again and 'more plainly') to bear arms, 'to carry in on ones person or in a pocket', outside of the home. That's what the current crop of cases are attempting to accomplish.

 

The GFSZ is just another 'sensitive place.' This will be the next big fight. Prohibition of the right inside of a court house, jail, government building, or secure area of an airport will pass muster. 1000 feet off of school property or inside of a TIF district, IMHO, doesn't stand a chance. There is no compelling interest, in light of the laws already on the books against armed violence and murder, for the Government to prove these area's are necessary to fully restrict a fundamental right. Especially when criminals don't follow the laws to begin with.

 

As far as legislatively being the cleanest solution to RTC, I cannot fully agree. Can it be done right? Yes, Arizona did it right and Wisconsin is doing pretty good as well. We can also look at Hawaii, California, Maryland, New Jersey, and New York to see sometimes it just doesn't work.

 

As far as the concealed vs. open carry debate, we need carry. Heller has given us a contradiction. The Second Amendment protects an individual right to keep and bear arms, 'on ones person or in a pocket,' but also that concealed carry may be restricted, as long as the right is not prohibited (outside of a 'sensitive place). If left up to the State to choose the manner of carry, I very much doubt IL will fight hard against a 'VERY FAIR' concealed carry bill when the alternative is open carry. If they do, a lot of soccer mom's are going to be quite unhappy and calling their Rep's to change their minds.

 

As far as what I expect the court to do, I expect them to answer the question at hand and then move on to the next question. Right now that question is does a right exist for a law abiding citizen to bear arms, for the fundamental right of self defense, outside of the home. I fully expect them to answer yes. Again, the next question is going to be on sensitive places. I expect a sensitive place to be defined as where the citizen exchanges a fundamental right for the governments obligation to fully provide and be responsible for citizen safety. Again, think secure area's like court houses, jails, and beyond airport security. If I'm being asked to give up my fundamental right, I should demand the Government to fully provide for my safety in return. JMHO.

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Bob --

 

since I started watching your posts, i have detected a very defeaytest attitude about how and when things will get done here in Illinois.

 

I would point out the attached dissent from People v. Aguilar in which the judge agreed with the position we have been advocating for, and is at the heart of the Shepard case. This case is now before the Illinois Supreme Court and will be decided in the next 6 months or so.

 

If we can get this out of a Cook County judge, I am optimistic about our future in Illinois.

 

 

Understanding and accepting a realistic time frame for the legal process to work is not defeatism. It is just real. You can choose to believe there is a quick fix in the pipes, but there just isn't.

 

Still not understanding this here.

 

Note I did not say quicker. I said better. I don't know what it is you think the courts are likely to give us. It will not be anywhere near as expansive as any LTC would be.

 

I think there is a good chance that we get something in 2012 that starts the ball rolling. But it will not mean that we can strap on our guns and walk down the street the next day. it will still be a felony and the police will still be enforcing AUUW.

 

Assuming that loaded firearm carry has been declared an enumerated fundamental right under the 2nd amendment by SCOTUS, in actuality they cannot continue to enforce AUUW. Doing so would violate both federal civil rights law and also federal criminal law, subjecting any enforcer to civil penalties with no immunity as well as potential criminal penalty.

 

Though the Chicago Firearms Ordnance and the days around the time of McDonald, the handgun ban was still in "effect", but police officers did not actually "enforce" the handgun ban in someone's home during that three or four day period.

 

I was referring to after a court decision that gave us some extremely limited "right" to carry. It is no longer a total ban. It is a much tougher case at that point. Now you have to litigate every square foot of where you are prohibited from carrying. Do you really think open carry is worth anything? It means you can't carry in your car or when the weather is inclement. Is that what you really want? Heller has pretty clearly signaled that concealed carry can be regulated to death if the states want to.

 

They cited four state Supreme Court cases that was 19th Century in origin.

 

Tell me, do you think Justice Kennedy is somehow going to embrace the 19th Century idea that "open carry is the right to bear arms", being that he's native of Sacramento, California and that in California, effective self defensive carry requires a CCW which requires concealment?

 

I should have said the court told congress what to do to make it constitutional. Yes, you are technically correct that the second version may not have been litigated but when the courts point the legislature in a direction and the legislature follows that direction, that is a pretty good sign that it is going to be hard to undo. As I said though, I think there is some chance of undoing it. OTOH, a court might well say that because people with LTC are more or less exempt from the law, that is good enough. Or they might say that only open carry would be lawful inside a school zone. How does that help us any?

 

Except what happens when you live in a state which doesn't issue licenses at all, and chose to eliminate the licensing system due to concerns of cost? It's gonna start happening soon because many states are broke right now and will continue to be for some time.

 

Defeatist - certainly not. realistic about the potential time frame and the potential pitfalls of relying on the courts to solve our problem - yes.

 

We are much better off with a legislative solution.

 

I said this last year and I will reiterate. If we rely on the courts I believe we will get something but the time frame may well be a decade or more to make it practical. The courts are just not very good at crafting remedies for these kind of things, and they work very slowly. It seems almost certain that whatever we got out of the courts would look at Heller and decide that sensitive places are off limits and CC can be banned. I would not be surprised one bit if the first pass we got out of the courts was something akin to the totally useless open carry WI currently has. Chances are they would look at the existing law to determine "sensitive" places. It is so broad and so vague that potentially TIF zones could be included as a sensitive area. You really want Chicago to declare all of Chicago a TIF zone to effectively ban carry in Chicago? It is a strong possibility.

 

TIF means Tax Improvement Financing. Questions like that will come up from a judge to a government using TIF as a precursor to a gun ban. Remember Ezell and the questions that were asked there?

 

Please take a listen.

 

I'll ask the question again:

 

Do you think Justice Kennedy is somehow going to embrace the 19th Century idea that "open carry is the right to bear arms", being that he's native of Sacramento, California and that in California, effective self defensive carry requires a CCW which requires concealment?

 

Now you are not fighting a ban on carry, you are fighting regulation of carry and SCOTUS has shown considerable friendliness toward that idea in Heller.

 

How do you fight the federal GFSZ law without a LTC? The state courts have no say over that law and in most urban areas there is some kind of school every few blocks.

 

To deal with that problem is going to take a SCOTUS decision that the federal GFSZ law is unconstitutional. Do you really believe that is going to happen? Its already been decided that it is constitutional. I think there is some chance of that happening, but it is not on any near term horizon.

 

Simple: You find a Vermont resident willing to go through the BS of being a plaintiff in litigation. Good luck finding one, but they may start popping up once all of the hubbub about bearing arms at all is settled about.

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  • 7 months later...

I was hoping Gray would drop in and update this...

 

From Calguns.net:

 

01/26/2012 [9937594] Notice of appearance submitted by Alan Gura for Amici Curiae Buckeye Firearms Foundation, Calguns Foundation, Inc., Citizens Rights Action League, Commonwealth Second Amendment, Connecticut Citizens Defense League, Gun Owners Civil Rights Alliance, Hawaii Defense Foundation, Illinois Carry, Illinois State Rifle Association, Maine Open Carry Association, Maryland Shall Issue, Oregon Firearms Educational Foundation, Scope Inc., Second Amendment Foundation, Inc., Stillwater Firearms Association, Virginia Citizens Defense League, Inc., West Virginia Citizens Defense League Inc. and Wisconsin Carry Inc. for court review. Certificate of Interested Parties: No. Served on 01/26/2012. Manner of Service: ECF/NDA.--[Edited 01/26/2012 by SDS to remove pdf from entry as the pleading has been filed] AG

 

01/26/2012 [9937605] Notice of appearance filed by Mr. Alan Gura for Wisconsin Carry Inc., West Virginia Citizens Defense League Inc., Virginia Citizens Defense League, Inc., Stillwater Firearms Association, Second Amendment Foundation, Inc., Scope Inc., Oregon Firearms Educational Foundation, Maryland Shall Issue, Maine Open Carry Association, Illinois State Rifle Association, Illinois Carry, Hawaii Defense Foundation, Gun Owners Civil Rights Alliance, Connecticut Citizens Defense League, Commonwealth Second Amendment, Citizens Rights Action League, Calguns Foundation, Inc. and Buckeye Firearms Foundation. CERT. OF INTERESTED PARTIES: n. Served on 01/26/2012. Manner of Service: ECF/NDA.

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