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Metro Sales, Inc. v. Core Consulting Group, LLC

United States District Court, D. Minnesota

July 26, 2017

Metro Sales, Inc., Plaintiff,
Core Consulting Group, LLC and Rodger Mohagen, Defendants. And Core Consulting Group, LLC, Counter-Claimant,
Metro Sales, Inc., Counter-Defendant.

          Gretchen L. Gurstelle, Esq., Karla M. Vehrs, Esq., and Sarah Pruett, Esq., Lindquist & Vennum LLP, counsel for Plaintiff.

          Kasey D. McNary, Esq., and Ronald H. McLean, Esq., Serkland Law Firm, counsel for Defendants.


          DONOVAN W. FRANK United States District Judge


         This matter is before the Court on a Motion for Summary Judgment brought by Plaintiff Metro Sales, Inc. (“MSI”). (Doc. No. 59.) Also before the Court is MSI's Motion to Exclude Expert Testimony. (Doc. No. 62.) Defendants Core Consulting Group, LLC (“Core”) and Rodger Mohagen (“Mohagen”) (collectively, “Defendants”), oppose the motions. (Doc. Nos. 72, 73.) For the reasons set forth below, the Court grants the motions, in part, consistent with this opinion. As outlined below, the following claims will proceed to trial: (1) Plaintiff's breach-of-fiduciary-duty and declaratory judgment claims; and (2) Core's breach-of-contract and deceit counterclaims.


         Jerry Mathwig (“Mathwig”) is the founder and president of Metro Sales, Inc., a Minnesota corporation that provides and services office equipment. (Doc. No. 75 (“McNary Decl.”) ¶, Ex. 28 (“Mathwig Dep.”) at 21:20-22, 23:16-18, 28:15-23, 35:14-19.) This case relates to MSI's efforts to pursue an employee stock ownership plan (“ESOP”)[1] for the company in late 2014 through the spring of 2015 in consultation with Core Consulting Group, LLC.

         I. The First Consulting Agreement

         In an October 2, 2014 e-mail, Mathwig reached out to Core, a North Dakota company that provides professional ESOP services. (McNary Decl. ¶ 3.c, Ex. 3.) Mathwig sent the e-mail to Core's president, Rodger Mohagen, asking if he and his company would be interested in discussing a possible ESOP for a Minneapolis company. (Id.) Mohagen's response was positive, and the parties signed an initial Consulting Agreement (the “First Consulting Agreement”) effective October 30, 2014 for Core to provide MSI with an ESOP “feasibility analysis.” (Id.; Doc. No. 67 (“Vehrs Decl.”) ¶ 2, Ex. 3 (“1st CA”).) The First Consulting Agreement had the following purposes:

[T]o gather information related to the governance and operations of [MSI] necessary to allow [Core] to determine primary issues to be addressed in [MSI's] formation and ongoing sponsorship of an [ESOP] . . . and to present these issues to [MSI] in a form . . . which enables [MSI] to make informed decisions in forming and addressing ongoing administration of a[n] . . . ESOP.

(Id., Ex. 1.) In performing the feasibility analysis, Core anticipated that it would “[r]equest and review . . . [MSI] documents, ” and “review and comment on” implementing the ESOP as well as pre- and post-ESOP-formation transaction issues. (Id.) These services were to run from October 30, 2014 through January 15, 2015. (Id.) The First Consulting Agreement had “a fixed fee of . . . $35, 000.” (Id. ¶ 2.)

         II. The Second Consulting Agreement

         MSI and Core entered into another Consulting Agreement (the “Second Consulting Agreement”) effective December 16, 2014 with a fixed fee of $25, 000. (Doc. No. 1 (“Compl.”) ¶ 9, Ex. B (“2nd CA”).) The Second Consulting Agreement contained the same provisions as the first, but provided for additional services to run from December 8, 2014 through January 30, 2015. (Id.; see also 1st CA.) The services in the Second Consulting Agreement focused on designing and drafting documents for the ESOP, such as an ESOP plan document, minutes, and other corporate documents. (2nd CA, Ex. 1.) Core also agreed to counsel MSI on several issues, including the timing of employee notices, provisions to include in the ESOP Document, the accrual and payment of ESOP contributions, and “anticipated income tax benefits.” (Id.)

         Communication and work on services contained in each of the two signed Consulting Agreements continued after the terms of the contracts ended. The feasibility analysis continued into February 2015, when Mohagen e-mailed Mathwig and noted that Core was “winding up the ‘feasibility' portion.” (Vehrs Decl. ¶ 2, Ex. 22.) MSI adopted the ESOP plan document on December 30, 2014. (McNary Decl. ¶ 3.i, Ex. 9.) This was before the Second Consulting Agreement's term ended, but some matters relating to this agreement were still in progress in March 2015. (Vehrs Decl. ¶ 2, Ex. 23.) MSI has paid the $60, 000 in fixed fees under the First and Second Consulting Agreements. (See Compl. ¶ 12; Doc. No. 47 (“Am. Answer”) ¶ 12.) The consulting agreements are governed by North Dakota law. (See 1st CA ¶ 12; 2nd CA ¶ 12.)

         III. Additional Fees

         As Core's consulting work continued, the parties discussed additional fees and services on numerous occasions. On November 2, 2014, Mohagen sent Steve Zenz (“Zenz”), a member of MSI's board of advisors, a fee estimate. (McNary Decl. ¶ 3.a, Ex. 1; Vehrs Decl. ¶ 2, Ex. 6.) Including the First Consulting Agreement's $35, 000 fixed fee, this anticipated fee estimate ranged from $105, 000 to $127, 500. (Vehrs Decl. ¶ 2, Ex. 6; McNary Decl. ¶ 3.r, Ex. 18.) Mohagen noted that “it is extremely difficult if not impossible to provide an ‘estimated fee'” partly because of “the high number of potential issues to be addressed.” (Vehrs Decl. ¶ 2, Ex. 6.) He also noted that “if any issues arise in the feasibility analysis, those issues will be resolved outside of a ‘simplified' ESOP formation.” (Id.) On November 3, 2014, Zenz e-mailed Mathwig and told him he “let [Mohagen] know we are okay with the feasibility fee and that we want to know in advance if he is going to do anything with an additional fee.” (Vehrs Decl. ¶ 2, Ex. 25.) On March 13, 2015, Mohagen e-mailed Zenz another fee estimate indicating fees of $395, 000 plus at least an additional $122, 500. (Vehrs Decl. ¶ 2, Ex. 5.) On March 14, 2015, Zenz responded to Mohagen's e-mail, noting that he “was expecting the all-in fee would be around $300k, maybe $350k” and stating that he was “very concerned” about the high fee estimate. (Id.) On March 25, 2015, Mohagen sent Mathwig an e-mail and attached an anticipated fixed fee schedule for additional services in response to a request from MSI. (Vehrs Decl. ¶ 2, Ex. 6.) The estimated fees totaled $532, 500, including the $60, 000 already paid. (Id.)

         IV. Additional Services

         As the engagement continued, Core proposed additional consulting agreements beyond those signed by the parties. On March 25, 2015, Mathwig sent a proposed Consulting Agreement for services totaling $7, 500 to be executed from March 2, 2015 through April 30, 2015. (Vehrs Decl. ¶ 2, Ex. 7.) On April 20, 2015, Mohagen e-mailed three new proposed consulting agreements, which were to account for work from March 2, 2015 until June 30, 2015. (Vehrs Decl. ¶ 2, Ex. 11.) The additional fees proposed in these agreements totaled $180, 000. (Id.) Then, Mathwig e-mailed five more proposed consulting agreements on April 23, 2015, totaling $285, 000. (Vehrs Decl. ¶ 2, Exs. 12, 13.) The term of these proposed agreements also began on March 2, 2015. (Id.) Mohagen noted on both April 20, 2015 and April 23, 2015 that Core had already “engaged in significant services related to each of the attached [consulting agreements].” (Vehrs Decl. ¶ 2, Ex. 11; Vehrs Decl. ¶ 2, Ex. 13.)

         MSI did not sign any of the additional proposed consulting agreements. (McNary Decl. ¶ 3.w, Ex. 23.) However, the parties dispute whether Mathwig promised to do so. In his deposition, Mohagen asserted that he had a conversation with Mathwig on April 7, 2015, and Mathwig “agreed to all the engagement letters that were the product of the [fixed fee] schedule that he had been provided.” (Vehrs Decl. ¶ 2, Ex. 38 (“Second Mohagen Dep.”) at 17:24-18:6.) On April 8, 2015, Mohagen wrote to Zenz that “Jerry [Mathwig] did agree to sign engagement agreements and pay fees as we go.” (Vehrs Decl. ¶ 2, Ex. 10.) Mathwig does not deny that a phone call occurred on April 7, 2015, but he asserts that he “made no such promise, ” and noted that he “had not even seen the other proposed agreements as of the date of that phone call.” (Doc. No. 66 (“Mathwig Decl.”) ¶¶ 5, 6.)

         It is also disputed whether MSI knew Core was undertaking additional services beyond the scope of the First and Second Consulting Agreements. Mohagen testified that he informed Mathwig about such services and fees in “personal meetings” or “telephone conferences.” (Vehrs Decl. ¶ 2, Ex. 37 (“Mohagen Dep.”) at 48:3-24.) Additionally, at least some agenda items and communications appear to include items not explicitly listed in either of the two signed Consulting Agreements. For example, a February 2, 2015 agenda included “NA Trading” and “Treatment of AAA”-both of which were not specifically listed in either of the signed Consulting Agreements. (McNary Decl. ¶ 3.j, Ex. 10; see 1st CA; 2nd CA.) On February 17, 2015, Mohagen also e-mailed Mathwig a summary of anticipated services for moving forward and indicated that some services would be completed immediately. (Vehrs Decl. ¶ 2, Ex. 22.)

         However, on March 13, 2015, Mohagen wrote to Zenz that “Core anticipates entering into Consulting Agreements prior to material services being initiated on a particular project within the confines of the overall engagement.” (Vehrs Decl. ¶ 2, Ex. 5.) And on March 25, 2015, Mohagen wrote to Mathwig that the First and Second Consulting Agreements for fees of $35, 000 and $25, 000 “have been engaged, initiated and completed, therefore the services [sic] fees have been set and paid. The remaining services have not as of yet been engaged.” (Vehrs Decl. ¶ 2, Ex. 6.)

         V. “Halt All Work” Instruction and Termination of the Relationship

         On May 6, 2015, the relationship between MSI and Core quickly deteriorated when Mathwig sent Mohagen an instruction “to halt all work until I approve a restart” and “to bill all work that has been done so far.” (Vehrs Decl. ¶ 2, Ex. 15.) In response, Mohagen sent an e-mail to Mathwig and Zenz regarding Mathwig's instruction to “halt all work.” (McNary Decl. ¶ 3.w, Ex. 23.) His e-mail included a statement reminding Mathwig that “Core sent you, personally and MSI a schedule . . . of the Projects to be undertaken with regard to this Engagement and the anticipated cost/benefit of individual Projects.” (Id.)

         On May 12, 2015, Mathwig wrote another e-mail stating that he expected “the Valuation Process to be completed fully and not excluded.” (Vehrs Decl. ¶ 2, Ex. 15.) However, on June 16, 2015, Mathwig sent another e-mail ending the relationship between Core and MSI. (Vehrs Decl. ¶ 2, Ex. 20.) On June 25, 2015, Mohagen e-mailed Mathwig the signed Consulting Agreements along with eight “[i]nvoices for Core services provided outside Exhibit 1 of the attached CA's billed at Core's standard hourly rates.” (Vehrs Decl. ¶ 2, Ex. 21.) The invoices totaled $207, 032.50. (Id.)

         VI. Procedural Background

         On August 7, 2015, MSI commenced this action. (Compl.) In the Complaint, MSI asserts the following claims: (1) breach of fiduciary duty (Count I); and (2) declaratory judgment pursuant to 28 U.S.C. § 2201(a) (Count II). (Id. ¶¶ 30-38.) MSI seeks the following relief: (1) $60, 000 as damages for its breach-of-fiduciary-duty claim; (2) an award of costs and attorney fees; (3) a declaration that MSI is not obligated to Core Consulting to pay $207, 032.50 in additional fees; (4) a declaration that the First and Second Consulting Agreements are unconscionable and void; and (5) other relief the court deems appropriate. (Id. at Prayer for Relief.)

         On March, 1, 2016, Defendants filed an Amended Answer and Counterclaim. (Am. Answer.) Core asserts the following counterclaims against MSI: (1) breach of contract under the First and Second Consulting Agreements (Count I); (2) unjust enrichment (Count II); (3) promissory estoppel (Count III); and (4) deceit/misrepresentation (Count IV). (Id. ¶¶ 90-117.) Core seeks the following relief: (1) dismissal of MSI's Complaint with prejudice; (2) $207, 032.50 plus interest; (3) an award of costs and attorney fees; and (4) other relief the court deems equitable.[2] (Id. at Prayer for Relief.) The Court provides additional facts as they are relevant to the claims and issues analyzed below.


         I. MSI's Motion for Summary Judgment

         MSI asserts it is entitled to summary judgment on all claims before the Court, including its own claims for declaratory judgment and breach of fiduciary duty as well as Core's breach of contract, promissory estoppel, unjust enrichment, and deceit counterclaims. Defendants, on the other hand, contend that genuine issues of material fact preclude summary judgment in MSI's favor.

         A. Legal Standard

         Summary judgment is appropriate if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.'” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).

         The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         B. Declaratory Judgment and Breach of Contract

         MSI contends that it is entitled to a declaratory judgment to resolve the parties' actual dispute over MSI's obligation to pay invoices totaling $207, 032.50. Accordingly, MSI also argues that it is entitled to summary judgment on Defendants' counterclaim for breach of contract. First, MSI argues that the parties' contracts-the First and Second Consulting Agreements-plainly required Core to provide notice to MSI if any requested services went beyond the existing agreements. Second, MSI contends that there is no evidence that such notice was provided, absent Mohagen's self-serving testimony. MSI further asserts that it had no reason to believe services were being performed outside of the First and Second Consulting Agreements. In particular, MSI argues that Mohagen's February 17, 2015 e-mail could not have provided notice because it stated that Core was “winding up the ‘feasibility' portion of our engagement, ” and working on an outline of issues not yet addressed. (Doc. No. 76 at 6 (quoting Vehrs Decl. ¶ 2, Ex. 22).) MSI points out that it is not relevant if MSI should have known that additional services were being provided beyond the scope of the existing agreements because Core had an obligation to provide actual notice.

         Defendants assert that summary judgment on MSI's declaratory judgment claim is improper.[3] First, Defendants suggest that the Consulting Agreements contain no requirement that Core provide advance notice of services falling outside the scope of the agreements. Second, Defendants identify “several instances of Core notifying MSI of services not described in the two executed Consulting Agreements.” (Doc. No. 73 at 19.) For example, Defendants point out that Mathwig participated in weekly conference calls relating to the ESOP transaction even after the ESOP document was adopted. In addition, Defendants point to Mohagen's testimony that Mathwig was informed of outside services “[o]n a number of occasions.” (Id. at 19-20.) Defendants also identify conference call agendas that cover topics outside the scope of the First and Second Consulting Agreements and point out that conference calls nearly always included discussions of fees and projects. Defendants also note that Mohagen explained via e-mail on February 17, 2015 that he would “continue to address matters requiring immediate attention” after describing many services that were not yet engaged. (Id. at 20 (quoting Vehrs Decl. ¶ 2, Ex. 22).) In short, Defendants argue that genuine issues of material fact remain, precluding summary judgment.

         The Court first notes the apparent dispute between the parties over the proper framing of the issues under these claims. With respect to its own declaratory judgment claim and Core's breach-of-contract counterclaim, MSI focuses on the invoices totaling $207, 032.50. However, MSI points out that Mohagen testified Defendants sent the invoices totaling $207, 032.50 to MSI to attempt to settle Core's claimed entitlement to the additional fixed fees under the unsigned Consulting Agreements. In responding to MSI's declaratory judgment claim, Defendants assert that “MSI asks the Court to declare that MSI owes no additional fees to Core for consulting services, ” not specifically referencing the $207, 032.50 invoice figure. (Doc. No. 73 at 18 (emphasis added).) Notwithstanding the parties' inconsistent framing of the issues under these claims, the Court interprets MSI's declaratory judgment claim as seeking to resolve the parties' dispute over MSI's liability to Core for $207, 032.50 under the First and Second Consulting Agreements-the only signed contracts between the parties. The Court will thus analyze these claims by focusing on this disputed issue.

         Under North Dakota law, “[a] breach of contract is the nonperformance of a contractual duty when it is due.” Welch Const. & Excavating, LLC v. Duong, 2016 ND 70, ¶ 5, 877 N.W.2d 292, 294 (quoting WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d 841, 848). The following three elements must be established: “the existence of a contract, a breach of the contract, and damages flowing from the breach.” Id. The burden rests on the party who has asserted a breach-of-contract claim. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, ¶ 15, 861 N.W.2d 490, 496.

         Construing a written contract is generally a question of law. Welch Const., 2016 ND 70, ¶ 6, 877 N.W.2d at 294. Contract terms should “be understood in their ordinary and popular sense rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.” N.D. Cent. Code § 9-07-09 (2017). Dictionaries provide a useful aid because “[t]he ordinary meaning is the definition a non law-trained person would attach to the term.” Martin v. Allianz Life Ins. Co. of N. Am., 1998 ND 8, ¶ 12, 573 N.W.2d 823, 826. A contract should be interpreted as a whole, with every clause being used “to help interpret the others.” N.D. Cent. Code § 9-07-06 (2017).

         Whether a contract has been breached is a question of fact. Welch Const., 2016 ND 70, ¶ 5, 877 N.W.2d at 294. If a party seeks to establish the existence of an oral agreement by testimony, a court should not “resolve disputed issues of material fact as to the terms of the contract” at the summary judgment stage. Martin Const., Inc. v. Concrete Strategies, LLC, 2016 WL 4218591, at *2 (D.N.D. Mar. 23, 2016). Further, “[n]otice is a question of fact, which is generally inappropriate for summary judgment.” Van Sickle v. Hallmark & Assocs., Inc., 2008 ND 12, ¶ 17, 744 N.W.2d 532, 538 (quotation marks and citation omitted).

         To be recoverable, damages must be “clearly ascertainable in both their nature and origin.” Serv. Oil, Inc., 2015 ND 77, ¶ 16, 861 N.W.2d at 496 (quoting N.D. Cent. Code § 32-03-09). Although “mere uncertainty in the exact amount of damages will not preclude recovery when obvious damages were suffered or reasonably certain substantial damages have resulted, ” recovery is precluded where there is “uncertainty as to the fact of damages, rather than the amount.” Id. A court may conclude that the “fact of damages” is uncertain, for example, based on a lack of inventories relevant to the claimed damages. See Id. at ¶¶ 20-21, 497-98.

         Both the First and Second Consulting Agreements include an attached “Exhibit 1” which outlines the “specific consulting and advisory services to be provided by [Core]” pursuant to the agreement. (1st CA ¶ 1 & Ex. 1; 2nd CA ¶ 1 & Ex. 1.) The agreements provide:

During the term of this Agreement, [MSI] may engage [Core] to complete consulting and advisory services which are outside the scope of services outlined in Exhibit 1. . . . When [MSI] engages [Core] to provide additional services under the terms of . . . this Agreement, whether or not [Core] provides [MSI] with a written outline of the services to be completed and the fees to be charged by [Core] for these additional services, additional services shall be provided under the terms of this Agreement at standard hourly rates. If these additional services take longer than the term of this Agreement to be completed, this Agreement shall continue to be in effect until the completion of these additional services by [Core].

(1st CA ¶ 1; 2nd CA ¶ 1.) With respect to fees, the agreements state:

[MSI] agrees that the fees quoted for this Agreement are for the services outlined in Exhibit 1 of this Agreement only and do not include services that may be required or engaged for with [Core] outside of the services summarized in Exhibit 1 . . . . [Core] will notify [MSI] verbally or in writing when requested consulting services fall outside of the services rendered pursuant to Exhibit 1 . . . .

(1st CA ¶ 2; 2nd CA ¶ 2.) Under a provision addressing termination, the First Consulting Agreement states:

The term of this Agreement shall commence October 30, 2014, and terminate January 15, 2015, unless extended by ongoing services as outlined under Section 1 of this Agreement. The Agreement may be terminated by either party upon written notice if the other party breaches any of its obligations hereunder and the breaching party fails to cure such breach within thirty (30) days after receipt of notice of such breach. . . .
If [MSI] elects to terminate this Agreement at any time after thirty (30) days from the execution of this Agreement, [MSI] shall be obligated to pay the fees enumerated in Section 2 of this Agreement and any fees agreed to on engagements falling outside of the services summarized in Exhibit 1 . . . .

(1st CA ¶ 5.) The Second Consulting Agreement contains an identical provision except for the term which “shall commence December 8, 2014, and terminate January 30, 2015.” (2nd CA ¶ 5.)

         The Court first concludes that the First and Second Consulting Agreements unambiguously require Core to provide advance notice of services being provided outside the scope of the existing agreements. Both agreements plainly state that “[Core] will notify [MSI] verbally or in writing when requested consulting services fall outside of the services rendered pursuant to Exhibit 1.” (1st CA ¶ 2; 2nd CA ¶ 2.) There is no indication that the use of the term “notify” in this provision should be construed according to its “strict legal meaning, ” “in a technical sense, ” or in accordance with a “special meaning.” See N.D. Cent. Code § 9-07-09. Understood in its “ordinary and popular sense, ” see id., “notify” means, in relevant part, “to give notice of or report the occurrence of.” Notify, Merriam-Webster, http:// (last visited July 20, 2017). In turn, the first-listed definition of “notice” is “warning or intimation of something.” Notice, Merriam- Webster, (last visited July 20, 2017).

         Consistent with these definitions, the Court concludes that the requirement to “notify” MSI most sensibly requires prior notice which would warn MSI and permit it to evaluate whether or not to engage such additional services. The Court acknowledges that the word “notify” may refer to prior notice or notice provided after the fact. When read in context, however, the Court concludes that the commonsense reading of this provision requires advance notice. See N.D. Cent. Code Ann. § 9-07-06 (providing that contracts should be read as a whole).

         Second, the Court concludes that a genuine issue of material fact exists regarding whether Core notified MSI in advance that the additional services being provided were beyond the scope of the First and Second Consulting Agreements. In particular, Mohagen testified in his deposition as follows:

THE COURT REPORTER: “Did you tell him in each conversation that you had with him starting in December that you were undertaking work outside of the agreements that he had already signed?”
[Mohagen]: No.
[Counsel for MSI]: Did you ever tell him that?
[Mohagen]: I believe we told him at a number of occasions.
[Counsel for MSI]: When?
[Mohagen]: I think if you look at every agenda for every phone conference there's always a discussion about fees and billings. Every Steve Zenz prepared agenda.
[Counsel for MSI]: So you're saying it was in personal meetings when you told him that you were undertaking work already outside the scope of the two signed consulting agreements?
[Mohagen]: Yes. And/or in telephone conferences.
[Counsel for MSI]: Was it in every one?
[Mohagen]: I don't know that it was in every one. I ...

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