Nosaka et al v. American Federation of State, County and Municipal Employees, AFL-CIO et al
| Alton K. Nosaka, Eric M. Sakazaki, Gordon K. Leslie, Rachel Krygier and Richard Okuda, Jr. |
| American Federation of State, County and Municipal Employees, AFL-CIO, Elizabeth Ho and Doe Defendants 1-19 |
| 1:2021cv00497 |
| December 19, 2021 |
| US District Court for the District of Hawaii |
| HELEN GILLMOR |
| WES REBER PORTER |
| ROM TRADER |
| Labor: Other |
| 29 U.S.C. § 0401 |
| None |
Docket Report
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This docket was last retrieved on March 14, 2022. A more recent docket listing may be available from PACER.
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Filing 33
MEMORANDUM in Opposition to Defendants Request for Judicial Notice [DKT.#28 ] filed by Rachel Krygier, Gordon K. Leslie, Alton K. Nosaka, Richard Okuda, Jr., Eric M. Sakazaki. (Attachments: #1 Declaration of Counsel, #2 Certificate of Service)(Yaindl, Georgette) Modified on 2/9/2022 (jo)
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Filing 32
MEMORANDUM in Opposition re #27 MOTION to Dismiss for failure to State a Claim Defendants' Motion to Dismiss Second Amended Complaint [Dkt. #16] filed by Rachel Krygier, Gordon K. Leslie, Alton K. Nosaka, Richard Okuda, Jr., Eric M. Sakazaki. (Attachments: #1 Declaration of Counsel, #2 Exhibit 1 UPW Constitution, #3 Certificate of Service)(Yaindl, Georgette) Modified on 2/9/2022 (jo)
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Filing 31
NOTICE by American Federation of State, County and Municipal Employees, AFL-CIO Notice of Disaffiliation and Withdrawal of Jerry P.S. Chang as Counsel for Defendants American Federation of State, County and Municipal Employees, AFL-CIO, and Elizabeth Ho American Federation of State, County and Municipal Employees, AFL-CIO. (Ikeda, Ashley)
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Filing 30
EO: In light of the pending #27 Defendants' Motion to Dismiss Second Amended Complaint currently set for March 8, 2022, the Telephonic Rule 16 Scheduling Conference previously set for February 14, 2022 IS CONTINUED TO April 11, 2022 at 9:00 a.m. before MAGISTRATE JUDGE WES REBER PORTER. Scheduling conference statements are due by April 4, 2022.In accordance with the United States District Court for the District of Hawaii's latest Temporary General Order Regarding District of Hawaii Response to COVID-19 Emergency and the Order Authorizing the Use of Telephonic and Video Hearings, due to the ongoing COVID-19 pandemic and public health emergency, including the anticipated long term need to maintain certain social distancing and other measures intended to protect the public, court employees, and counsel from being exposed to the COVID-19 virus, while at the same time regulating civil matters in a manner consistent with equity and fairness, the hearing will be held telephonically. Parties are to participate via telephone through our AT&T Service. Call-in information for this conference is below. Parties must connect to the conference at least five (5) minutes prior to the scheduled start time of the hearing.Dial in number is 1-888-278-0296Access Code is 8224751 (MAGISTRATE JUDGE WES REBER PORTER)(bbb)
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Filing 29
EO: On January 21, 2022, Defendants filed:DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT (Dkt. #16). (ECF No. #27 ).Plaintiffs shall file their Opposition on or before Tuesday, February 8, 2022.Defendants shall file their Reply on or before Tuesday, February 22, 2022.A hearing on Defendants' Motion to Dismiss Second Amended Complaint (ECF No. #27 ) shall be held on Tuesday, March 8, 2022, at 10:30 a.m., via video teleconference, before the Honorable Helen Gillmor.The courtroom manager will provide the applicable participants with instructions and information to connect by video prior to the scheduled video conference date. (SENIOR JUDGE HELEN GILLMOR)(rls)
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Filing 28
REQUEST Judicial Notice in Support of Motion to Dismiss Second Amended Complaint [Dkt. # 16] by American Federation of State, County and Municipal Employees, AFL-CIO, Elizabeth Ho. (Attachments: #1 Exhibit A to Request for Judicial Notice in Support of Motion to Dismiss, #2 Exhibit B to Request for Judicial Notice in Support of Motion to Dismiss, #3 Exhibit C to Request for Judicial Notice in Support of Motion to Dismiss, #4 Certificate of Service of Request for Judicial Notice in Support of Motion to Dismiss)(Harland, Bruce)
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Filing 27
MOTION to Dismiss for failure to State a Claim Defendants' Motion to Dismiss Second Amended Complaint [Dkt. #16] Bruce A. Harland appearing for Defendants Elizabeth Ho, American Federation of State, County and Municipal Employees, AFL-CIO (Attachments: #1 Memorandum in Support of Motion to Dismiss Second Amended Complaint, #2 Certificate of Service of Motion to Dismiss Second Amended Complaint)(Harland, Bruce)
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Filing 26
EO: On December 19, 2021, Plaintiffs filed:CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (ECF No. 1). Plaintiffs' position is that the original Complaint was never served on the Defendants.Also on December 19, 2021, Plaintiffs filed:FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (ECF No. 3).The First Amended Complaint was served on the Defendants on December 29, 2021. (ECF Nos. 11 and 12).At the hearing on January 7, 2022, Defendants indicated that they intended to file a Motion to Dismiss and agreed to file the Motion by January 21, 2022. (ECF No. 19).On January 10, 2022, Plaintiffs filed:SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY RELIEF. (ECF No. 16).Plaintiffs take the position that because they did not serve the original Complaint they were permitted to file the Second Amended Complaint (ECF No. 16) without leave of court pursuant to Fed. R. Civ. P. 15(a)(1).On January 19, 2022, Defendants filed:DEFENDANTS' MOTION TO DISMISS COMPLAINT (Dkt. #1). (ECF No. 24).Defendants' Motion to Dismiss Complaint (Dkt. #1) (ECF No. 24) is STRICKEN. The original Complaint (ECF No. 1) is not the operative pleading in this case and has been amended by both the First Amended Complaint and the Second Amended Complaint.The Court finds that the Second Amended Complaint is the operative pleading that was permitted to be filed as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(A).The Court extends the deadline for Defendants to file a response to the Second Amended Pleading until Wednesday, February 9, 2022, pursuant to Fed. R. Civ. P. 15(a)(3). (SENIOR JUDGE HELEN GILLMOR)(tl)
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Filing 25
REQUEST Judicial Notice in Support of Motion to Dismiss [Dkt. # 1] by American Federation of State, County and Municipal Employees, AFL-CIO, Elizabeth Ho. (Attachments: #1 Exhibit A to Request for Judicial Notice in Support of Motion to Dismiss, #2 Exhibit B to Request for Judicial Notice in Support of Motion to Dismiss, #3 Exhibit C to Request for Judicial Notice in Support of Motion to Dismiss, #4 Certificate of Service of Request for Judicial Notice in Support of Motion to Dismiss)(Harland, Bruce)
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Filing 24
**Docket Entry Stricken Pursuant to ECF No. #26 ** MOTION to Dismiss for failure to State a Claim Defendants' Motion to Dismiss Complaint [Dkt. # 1] Bruce A. Harland appearing for Defendants Elizabeth Ho, American Federation of State, County and Municipal Employees, AFL-CIO (Attachments: #1 Memorandum in Support of Motion to Dismiss, #2 Certificate of Service of Motion to Dismiss)(Harland, Bruce) Modified on 1/21/2022 (rls).
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Filing 23
ORDER GRANTING MOTION TO APPEAR PRO HAC VICE AS TO WILLIAM T. HANLEY re: #21 - Signed by MAGISTRATE JUDGE WES REBER PORTER on 1/12/2022. WILLIAM T. HANLEY, ESQ. (Firm: Weinberg, Roger & Rosenfeld) added as attorney Pro Hac Vice as to Defendants American Federation of State, County and Municipal Employees, AFL CIO; Elizabeth Ho in her capacity as Administrator of Local 646, AFSCME, United Public Workers (jo)
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Filing 22
ORDER GRANTING MOTION TO APPEAR PRO HAC VICE AS TO BRUCE A. HARLAND re: #20 - Signed by MAGISTRATE JUDGE WES REBER PORTER on 1/12/2022. BRUCE A. HARLAND, ESQ. (Firm: Weinberg, Roger & Rosenfeld) added as attorney Pro Hac Vice as to Defendants American Federation of State, County and Municipal Employees, AFL CIO; Elizabeth Ho in her capacity as Administrator of Local 646, AFSCME, United Public Workers (jo)
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Filing 21
MOTION for Pro Hac Vice Motion to Appear Pro Hac Vice - William T. Hanley Filing fee $ 300, receipt number AHIDC-2629138.Ashley K Ikeda appearing for Defendant American Federation of State, County and Municipal Employees, AFL-CIO (Attachments: #1 Declaration of William T. Hanley, #2 [Proposed] Order)(Ikeda, Ashley)
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Filing 20
MOTION for Pro Hac Vice Motion to Appear Pro Hac Vice - Bruce A. Harland Filing fee $ 300, receipt number AHIDC-2629133.Ashley K Ikeda appearing for Defendant American Federation of State, County and Municipal Employees, AFL-CIO (Attachments: #1 Declaration of Bruce A. Harland, #2 [Proposed] Order)(Ikeda, Ashley)
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ADVISORY ENTRY: In regard to recent filings made by attorney Georgette Anne Yaindl, on behalf of Plaintiffs: it is suggested that a filing party associate them-self as to the entities they are representing, and not be added as a party to the case/docket. For additional resources related to filing documents, please see our website: www.hid.uscourts.gov. (jo)
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Filing 18
NOTICE of Withdrawal of Motion by Georgette Anne Yaindl on behalf of Georgette Anne Yaindl. (Attachments: #1 Exhibit 1, #2 Certificate of Service)(Yaindl, Georgette) Modified on 1/11/2022 (jo)
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Filing 17
NOTICE of Case Reassignment; Case reassigned to MAGISTRATE JUDGE WES REBER PORTER for all further proceedings. MAGISTRATE JUDGE ROM TRADER no longer assigned to case Please reflect Civil case number CV 21-00497HG-WRP on all further pleadings. (apg)
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Filing 16
Second AMENDED COMPLAINT For Declaratory Relief against All Defendants, filed by Georgette Anne Yaindl. (Attachments: #1 Exhibit, #2 Certificate of Service)(Yaindl, Georgette) Modified on 1/10/2022 (jo)
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Filing 19
EP: Hearing on MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (ECF No. #13 ) via Video Teleconference("VTC") held.Oral arguments heard.I. Plaintiffs' Motion for a Temporary Restraining Order (ECF No. 13)Pursuant to Federal Rule of Civil Procedure 65, a district court may issue a temporary restraining order to prevent immediate and irreparable injury, loss, or damage to the movant. Fed. R. Civ. P. 65(b), (d); Martin v. City & Cnty. of Honolulu, 2015 WL 5826822, *3 (D. Haw. Oct. 1, 2015).The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Carmichael v. Ige, 470 F.Supp.3d 1133, 1140 (D. Haw. 2020) (citing Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017)).A plaintiff seeking a temporary restraining order must establish:(1) a likelihood of success on the merits;(2) a likelihood of irreparable harm in the absence of the restraining order;(3) that the balance of equities tips in favor of issuing the restraining order; and,(4) that issuing the restraining order is in the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011).A. Plaintiffs Request a Temporary Restraining Order Here, Plaintiffs are members of the United Public Workers union who have filed suit titled as a class action, pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. 401 et seq., and the Labor Relations Management Act, 29 U.S.C. 141-197. (First Amended Complaint at p. 1, ECF No. 3).Plaintiffs seek a Temporary Restraining Order against Defendants American Federation of State, County and Municipal Employees, AFL-CIO, and Elizabeth Ho, in her official capacity as Administrator of Local 646, AFSCME, United Public Workers. (ECF No. 13). Plaintiffs request a temporary restraining order to stop a run-off union election for State Director, State President, and State Treasurer. Specifically, Plaintiffs request:(1) an ex parte order to issue immediately temporarilyenjoining Defendants from making or committing toexpenditures and taking any other actionsassociated with the run-off election; andsuspending election results; and,(2) an order enjoining Defendants from making orcommitting to expenditures and taking any otheractions associated with the run-off election; andvoiding election results.B. Jurisdictional QuestionsDefendants assert that Plaintiffs are not likely to succeed on the merits of their claims. Defendants argue that this Court lacks jurisdiction to consider Plaintiffs' First Amended Complaint because Plaintiffs' challenges to the union elections and related procedures fall within Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. 481-83. Defendants argue that only the Secretary of Labor may bring a cause of action in federal court for violations of Title IV of the LMRDA, not individual union members, citing Local No. 82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 539-40 (1984).The Court does not reach Defendants' arguments regarding jurisdiction and the question of likelihood of success on the merits at this time. Plaintiffs have failed to establish a likelihood of irreparable harm in the absence of a temporary restraining order.C. Irreparable HarmA plaintiff seeking a temporary restraining order must demonstrate immediate threatened injury that is irreparable. Carribean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). Irreparable harm is harm for which there is no adequate legal remedy. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014).Plaintiffs' arguments regarding union expenditures are insufficient to establish irreparable harm. Economic injury alone does not support a finding of irreparable harm. Apartment Assoc. of L.A. Cnty, Inc. v. City of L.A., 500 F.Supp.3d 1088, 1100-1101 (C.D. Cal. 2020) (citing Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991)).Plaintiffs have failed to demonstrate that there is no adequate legal remedy available in the absence of a temporary restraining order. The Labor-Management Reporting and Disclosure Act permits a Court or the Secretary of Labor to invalidate a union election after it has occurred in certain circumstances. 29 U.S.C. 482; Crowley, 467 U.S. at 540-41. The legal remedy available to Plaintiffs supports denying their request for a temporary restraining order. Breazeale v. Southwest Airline Pilots Assoc., 2017 WL 4817849, *3 (D. Nev. Oct. 24, 2017) (finding that a challenge to a union election did not warrant a temporary restraining order because there was an adequate legal remedy available through the LMRDA); see also Garcia v. Service Employees Intern. Union, 2009 WL 3561528, *7 (N.D. Cal. Oct. 27, 2009).Plaintiffs Motion for a Temporary Restraining Order (ECF No. 13) is DENIED.II. Additional FilingsDefendants stated that they will file a Motion to Dismiss by January 21, 2022. At the request of the Parties, the Court waives the meet and confer requirement under Local Rule 7.8.Defendants' Motion to Dismiss shall specifically address jurisdiction of this Court and Plaintiffs' ability to bring claims pursuant to Title III of the Labor-Management Reporting and Disclosure Act. Defendants shall also address Plaintiffs' allegations that the Trusteeship is invalid and Plaintiffs' ability to proceed as a class action. (Reporter-Gloria Bediamol) (SENIOR JUDGE HELEN GILLMOR)(rlfh) Modified on 1/10/2022 (jo)
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COURT'S CERTIFICATE of Service - a copy of #15 Minute Order was served on counsel for Plaintiff, Georgette Anne Yaindl, Esq. (gyaindl@gmail.com) and counsel for Defendant, Jerry Chang, Esq. (jchang@unioncounsel.net) at their respective email address(es) on January 6, 2022. (shm)
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Filing 15
EO: On January 4, 2022, Plaintiffs filed:MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARYRESTRAINING ORDER (ECF No. 13).Defendants shall file their Response to Plaintiffs' Motion (ECF No. 13) on or before 4:00 p.m., Thursday, January 6,2022.A hearing on Plaintiffs' Motion (ECF No. 13) shall be held on Friday, January 7, 2022, at 1:30 p.m. via Video Teleconference. (SENIOR JUDGE HELEN GILLMOR)(shm)
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Filing 14
MEMORANDUM in Opposition re #13 MOTION for Temporary Restraining Order Motion for Preliminary Injunction, Motion for TRO, DEFENDANTS AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO; and ELIZABETH HO, in her official capacity as Administrator of Local 646, AFSCME, United Public Workers filed by American Federation of State, County and Municipal Employees, AFL-CIO. (#1 Declaration of Nicole Pollard, #2 Certificate of Service)(Chang, Jerry) Modified on 1/10/2022 (jo)
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Filing 13
MOTION for Preliminary Injunction and Temporary Restraining Order Georgette Anne Yaindl appearing for Consol Plaintiff Georgette Anne Yaindl (Attachments: #1 Memorandum Memo In Support, #2 Declaration Nosaka Decl., #3 Exhibit Exhibit "2", #4 Exhibit Exhibit "3", #5 Exhibit Exhibit "6", #6 Exhibit Exhibit "7", #7 Exhibit Exhibit "8", #8 Exhibit Exhibit "9", #9 Declaration Sakazaki Decl., #10 Declaration Leslie Decl., #11 Declaration Krygier Decl., #12 Exhibit Exhibit "10", #13 Exhibit Exhibit "11", #14 Exhibit Exhibit "12", #15 Exhibit Exhibit '13", #16 Declaration Okuda Decl., #17 Exhibit Exhibit "14", #18 Exhibit Exhibit "15", #19 Declaration Counsel Decl., #20 Exhibit Exhibit "1", #21 Exhibit Exhibit "4", #22 Exhibit Exhibit "5", #23 Certificate of Service)(Yaindl, Georgette)
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Filing 12
SUMMONS Returned Executed by Georgette Anne Yaindl. Elizabeth Ho served on 12/27/2021. (Yaindl, Georgette)
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Filing 11
SUMMONS Returned Executed by Georgette Anne Yaindl. American Federation of State, County and Municipal Employees, AFL-CIO served on 12/27/2021. (Yaindl, Georgette)
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Filing 10
NOTICE of Withdrawal of Motion by Georgette Anne Yaindl on behalf of Georgette Anne Yaindl. (Attachments: #1 Exhibit)(Yaindl, Georgette)
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Filing 9
MOTION for Leave to File Excess Pages Georgette Anne Yaindl appearing for Consol Plaintiff Georgette Anne Yaindl (Yaindl, Georgette)
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Filing 8
Summons Issued as to Elizabeth Ho. (jni)
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Filing 7
Summons Issued as to American Federation of State, County and Municipal Employees, AFL-CIO. (jni)
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Filing 6
CIVIL Waiver of Service Packet - Notice to Parties Regarding Service Pursuant to Rule 4 of the Federal Rules of Civil Procedure (Attachments: #1 Notice of a Lawsuit and Request to Waive Service of a Summons, #2 Waiver of the Service of Summons)(jni)
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Filing 5
Order Setting Telephonic Rule 16 Scheduling Conference is set for 09:00AM on 2/14/2022 before MAGISTRATE JUDGE ROM TRADER - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 12/20/2021. (Attachments: #1 Memo Re: Corporate Disclosures) ATTACH THE SCHEDULING ORDER TO THE INITIATING DOCUMENT (COMPLAINT/NOTICE OF REMOVAL). THE SCHEDULING ORDER AND MEMO RE: CORPORATE DISCLOSURES MUST BE SERVED WITH THE DOCUMENT.(jni)
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Filing 4
NOTICE of Case Assignment: Please reflect Civil case number CV 21-00497 HG-RT on all further pleadings. (jni)
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Filing 3
First AMENDED Class Action COMPLAINT for Injunctive and Declaratory Relief against All Defendants, filed by Georgette Anne Yaindl. (Attachments: #1 Exhibit Summons.AFSCME, #2 Exhibit Summons.Ho, #3 Civil Cover Sheet)(Yaindl, Georgette) Docket Text Modified on 12/20/2021 (jni)
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Filing 2
NOTICE by Georgette Anne Yaindl Errata Document 1 caption Georgette Anne Yaindl. (Yaindl, Georgette)
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Filing 1
Class Action COMPLAINT For Injunctive and Declaratory Relief against All Defendants ( Filing fee $ 402 receipt number AHIDC-2621653.), filed by Georgette Anne Yaindl. (Attachments: #1 Exhibit Summons, #2 Exhibit Summons, #3 Civil Cover Sheet)(Yaindl, Georgette) Docket Text Modified on 12/20/2021 (jni)
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