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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`ROBERT HARTIGAN, on behalf of
`themselves and all others similarly situated,
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`MACY’S, INC.,
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`Plaintiff,
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`vs.
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`Defendant.
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`Case No. 20-10551
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`NOTICE OF REMOVAL
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`PLEASE TAKE NOTICE that Defendant Macy’s, Inc. (“Defendant”) hereby removes this
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`case from the Superior Court of the Commonwealth of Massachusetts to the United States District
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`Court for the District of Massachusetts. In support of removal, Defendant states as follows.
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`STATEMENT OF JURISDICTION
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`On November 26, 2019, Plaintiff Robert Hartigan (“Plaintiff”) filed a Class Action
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`Complaint (“Complaint”) against Defendant in Suffolk County Superior Court of the
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`Commonwealth of Massachusetts, Case No. 2019-CV-03718-BLS1 (the “State Court Action”). A
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`First Amended Complaint was then filed on or about February 14, 2020. Copies of the pleadings
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`and papers Defendant is aware of having been filed in the State Court Action are collected and
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`attached as Exhibit A.
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`This case is removable under 28 U.S.C. § 1453(b) because it meets the requirements of the
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`Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of
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`28 U.S.C.) (hereinafter “CAFA”). A defendant’s notice of removal under CAFA need only contain
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 2 of 7
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`a short and plain statement of the grounds for removal. Dart Cherokee Basin Operating Co., LLC
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`v. Owens, 135 S. Ct. 547, 551-53, 190 L. Ed. 2d 495 (2014).
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`THIS CASE IS REMOVABLE UNDER 28 U.S.C. § 1453(b) BECAUSE IT
`QUALIFIES AS A “CLASS ACTION” THAT MEETS THE
`REQUIREMENTS OF 28 U.S.C. § 1332(d)(2)
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`This case qualifies as a “class action” in which the putative class includes at least 100
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`members, the amount Plaintiffs have put into controversy exceeds $5,000,000, exclusive of interest
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`and costs, and one or more members of the putative class and Defendant are citizens of different
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`states. See 28 U.S.C. § 1332(d). Consequently, this action is removable pursuant to 28 U.S.C. §
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`1453, which provides that a “class action” may be removed to federal court in accordance with 28
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`U.S.C. § 1446(b). Defendant denies, however, that this case could be certified as a class action,
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`and expressly reserves its right to oppose any motion for class certification filed in this action.
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`A.
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`The Putative Class Includes At Least 100 Members
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`Plaintiff purports to bring this action “on behalf of himself and similarly situated
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`individuals.” See Ex. A, First Amended Complaint ¶ 93. Plaintiff defines the putative class as
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`follows: “All Massachusetts individuals whose Class Information was stolen, distributed, or
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`accessed by unauthorized third-parties as a result of The Breach.” Id. ¶ 94. The First Amended
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`Complaint defines “Class Information” as “Class Member’s personal information, including: first
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`and last names, addresses, phone numbers, and credit card information.” Id. ¶ 23. The data incident
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`that is the subject of the complaint potentially impacted 4,951 consumers in the Commonwealth
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`of Massachusetts. Declaration of Michael McCullough, ¶ 5. Thus, the putative class easily exceeds
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`the 100-member requirement imposed by CAFA.
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`B.
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`The Amount in Controversy Exceeds $5,000,000
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`“The amount in controversy is simply an estimate of the total amount in dispute, not a
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 3 of 7
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`prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395,
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`400 (9th Cir. 2010). “When the plaintiff’s complaint does not state the amount in controversy, the
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`defendant’s notice of removal may do so.” Dart Cherokee Basin Operating Co., 135 S. Ct. at 551.
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`Plaintiffs allege, inter alia, a violation of M.G.L. c. 214, § 1B, a common law claim for
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`negligence for allegedly breaching a duty of care owed to its card holders by failing to prevent the
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`criminal acts of an unknown third party. Ex. A, First Amended Complaint ¶¶ 102-120; 121-142.
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`Plaintiff also alleges a claim for breach of contract and M.G.L. c. 93A, § 2, M.G.L. c. 93H and for
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`declaratory judgment all based on the same operative set of facts. Id. ¶¶ 143-197. Although
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`Defendant denies the material allegations in the Complaint, denies any wrongdoing, and denies
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`that Plaintiff would be entitled to recovery in any amount, the amount placed in controversy by
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`Plaintiff’s class-based claims exceeds $5,000,000.
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`Plaintiff alleges damages for the costs the putative class will incur to pay for credit
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`monitoring to avoid identity theft, damages for breach of their privacy and public disclosure of
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`private facts, and damages for loss of time. The putative class also seeks recovery of attorneys’
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`fees. Of import, Plaintiff’s counsel sent Macy’s a settlement demand letter dated December 31,
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`2019, in which he demanded compensation in the amount of 10 years of identity monitoring (or
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`the cash equivalent) and $10,000 for each member of the putative class. As there were 4,951
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`Massachusetts consumers potentially affected by the data incident, at $10,000 each, the
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`settlement demand was over $49 million. In order for the amount in controversy to be less than
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`$5,000,000, each class member could not recover more than $1,010 on average. In light of the
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`six counts for which damages are sought, the number of potential putative class members (4,951)
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`and the damages sought due to the potential for identity theft, the risk of “financial detriment”
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`and the payment of “costly identity monitoring”, in additional to attorneys’ fees and costs, there
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 4 of 7
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`is no doubt that the amount in controversy clearly exceeds the $5,000,000 jurisdictional
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`threshold. McCullough Decl. at ¶¶ 4-5.
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`It is well-settled in this jurisdiction that settlement demands are relevant to establish that
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`the jurisdictional threshold has been met. Garick v. Mercedes-Benz USA, 2018 U.S. Dist. LEXIS
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`53980, *5 (rationale for finding the amount in controversy was met included: 1) the complaint
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`sought double or treble damages, 2) plaintiff made a pre-litigation demand of $50 million and 3)
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`the amount would be satisfied if every class member only received $13). Other federal
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`jurisdictions likewise have relied on settlement letters as relevant evidence of the amount in
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`controversy. See Chase v. Shop ' N Save Warehouse Foods, Inc., 110 F.3d 424, 428-30 (7th Cir.
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`1997) (plaintiff's settlement offer is properly consulted in determining "plaintiff's assessment of
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`the value of her case"); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994) ("Because the
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`record contains a letter, which plaintiff's counsel sent to defendants stating that the amount in
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`controversy exceeded $ 50,000, it is 'apparent' that removal was proper."); Cohn v. Petsmart, Inc.
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`(9th Cir. 2002) 281 F.3d 837, 840 (demand letter sufficient to establish amount in controversy).
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`In this case, even a conservative estimate of the penalties Plaintiff seeks for Defendant’s
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`purported failure to prevent the data incident – at 4,951 consumers – quickly surpasses the
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`$5,000,000 threshold, and removal under the CAFA is appropriate.
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`C.
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`Plaintiff and Defendant Are Citizens of Different States
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`Plaintiff is a citizen of the State of Massachusetts as alleged in the Complaint. Ex. A, First
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`Amended Complaint ¶ 5.
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`For diversity jurisdiction purposes, a corporation is deemed to be a citizen of the state in
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`which it is incorporated as well as the state where it has its principal place of business. 28 U.S.C.
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`§ 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 92-93, 130 S. Ct. 1181, 175 L. Ed. 2d 1029
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 5 of 7
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`(2010) (holding “‘principal place of business’ is best read as referring to the place where a
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`corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that
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`Courts of Appeals have called the corporation’s ‘nerve center.’”).
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`At the time Plaintiff filed the State Court Action, Defendant was incorporated under the
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`laws of the State of Delaware. Defendant is still incorporated under the laws of the state of
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`Delaware. Declaration of Steven R. Watts (“Watts Decl.”), ¶ 3. At the time Plaintiff filed the State
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`Court Action, Defendant’s principal place of business was in New York, New York. Defendant’s
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`principal place of business is still in New York, New York. Id. ¶ 4. This is demonstrated by the
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`fact that Macy's, Inc.'s corporate offices are located in New York. Defendant is also only qualified
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`to do business in Ohio, New York and Oregon (not Massachusetts). Also important to the analysis
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`of Defendant’s principal place of business is that its board of directors meets in New York; the
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`members of its executive management team are located in New York; and its other principal
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`corporate officers are also located in New York. Accordingly, as the decisions of the board of
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`directors, executive management team and corporate officers (the individuals responsible for
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`directing, controlling and coordinating the activities of Macy's, Inc.) are rendered from New York,
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`under Hertz, Defendant’s principal place of business is New York. Id.
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`In accordance with 28 U.S.C. § 1332, there is complete diversity of citizenship because
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`Plaintiff (Massachusetts) and Defendant (Delaware/New York) are citizens of different States. See
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`28 U.S.C. § 1332(a)(1),(c)(1).
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`REMOVAL IS TIMELY
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`This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it is being
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`filed within 30 days of the service of the Summons and Complaint by Defendant. The Summons
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`and Complaint were served on Defendant on February 19, 2020.
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 6 of 7
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`VENUE
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`Venue is proper in this district because the Suffolk County Superior Court of the
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`Commonwealth of Massachusetts is located within the federal District of Massachusetts and this
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`is the “district and division embracing the place where such action is pending.” 28 U.S.C. §
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`1441(a).
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`NOTICE TO PLAINTIFF
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`As required by 28 U.S.C. § 1446(d), Defendant will provide prompt written notice of the
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`filing of this Notice of Removal to Plaintiff.
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`NOTICE TO THE MASSACHUSETTS SUPERIOR COURT
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`As required by 28 U.S.C. § 1446(d), Defendant will promptly file this Notice of Removal
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`with the Clerk of the Suffolk County Superior Court for the Commonwealth of Massachusetts.
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`WHEREFORE, pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453, Defendant removes
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`this case from the Suffolk County Superior Court of the Commonwealth of Massachusetts to the
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`United States District Court for the District of Massachusetts.
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`Dated: March 19, 2020
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`Respectfully submitted,
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`By: _/s/ Brenda R. Sharton
`Brenda R. Sharton (BBO No. 556909)
`David S. Kantrowitz (BBO No. 676231)
`GOODWIN PROCTER LLP
`100 Northern Avenue
`Boston, Massachusetts 02210
`Tel.: 617.570.1000
`Fax: 617.523.1231
`bsharton@goodwinlaw.com
`dkantrowitz@goodwinlaw.com
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`Attorneys for Defendant Macy’s, Inc.
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`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing was served on March 19,
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`2020 via email on all counsel or parties of record listed below and will be sent via first class mail
`upon request:
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`David J. Relethford
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: drelethford@forrestlamothe.com
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`Michael C. Forrest
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: mforrest@forrestlamothe.com
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`Robert E. Mazow
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: rmazow@forrestlamothe.com
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`/s/ Brenda R. Sharton
` Brenda R. Sharton
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