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Paulsen v. Abbott Laboratories

United States District Court, N.D. Illinois, Eastern Division

March 27, 2018

TERRY PAULSEN, Plaintiff,
v.
ABBOTT LABORATORIES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Plaintiff Terry Paulsen (“Plaintiff”) brings this action against Defendants Abbott Laboratories, Takeda Pharmaceuticals of North America, Inc., Takeda Chemical Industries, Inc., and TAP Pharmaceutical Products, Inc. (“Defendants”) alleging negligence, strict products liability, breach of express and implied warranty, and fraudulent and negligent misrepresentation. Currently before the Court are Defendants' motions [96; 99] to dismiss all claims in the complaint with prejudice. For the reasons stated below, Defendants' motions [96] and [99] are granted in part and denied in part. The motion to dismiss TAP as a Defendant pursuant to Rule 12(b)(5) is granted to the extent that Plaintiff is given until May 22, 2018 to serve an amended complaint upon a proper defendant (whether that is TAP or a proper successor to TAP). If Plaintiff fails to serve a proper defendant by this date, TAP will be dismissed from the case. All claims against Defendant Takeda Inc. (and Takeda Ltd., to the extent that it is the party Plaintiff intended to name) are dismissed with prejudice. All claims against Defendant TPNA are dismissed without prejudice. Plaintiff's claims against Defendant Abbott for negligence, breach of express warranty, breach of implied warranty, fraudulent misrepresentation, and negligent misrepresentation are dismissed without prejudice. Plaintiff may proceed at this time against Abbott on her claims for strict products liability and strict products liability-failure to warn. Plaintiff is given until April 24, 2018 to file an amended complaint consistent with this opinion, if Plaintiff believes that she can overcome the deficiencies identified below for the dismissed claims. This case is set for further status hearing on May 24, 2018 at 9:00 a.m.[1]

         I. Background [2]

         A. Plaintiff's Lupron Injections

         Plaintiffs claims are based on the injuries she allegedly suffered after being injected with the drug depot leuprolide acetate (“Lupron”). Lupron was developed in the 1980s and approved by the FDA for the treatment of prostate cancer in 1989. [1, ¶ 10.] The FDA later approved Lupron as a treatment for endometriosis in 1990, and as a treatment for anemia associated with uterine fibroids in 1995. [Id., ¶ 11.] According to Plaintiff, reports submitted to the FDA in the 1990s indicated that users of Lupron were incurring bone loss, and the FDA subsequently approved Lupron add-back therapy designed to counteract Lupron's bone-depleting effects. [Id., ¶¶ 12-14.]

         Plaintiff is an individual residing in Georgia. [1, ¶ 3.] Plaintiff was prescribed Lupron to treat endometriosis, and she was injected with Lupron on two occasions from February 2004 to March 2004. [Id., ¶ 19.] Plaintiff subsequently received a diagnosis of severe joint arthropathy in April 2008, and she was diagnosed with osteoporosis in May 2010. [Id., ¶ 20.] Plaintiff also suffers from chronic joint pain, muscle pain, and fatigue. [Id.] Plaintiff alleges that she suffered these personal injuries as a result of her Lupron injections. [Id., ¶¶ 24, 34, 42, 49, 56, 66, 72.]

         B. The Defendants

         Plaintiff names four Defendants in her complaint. Defendant Abbott Laboratories (“Abbott”) is an Illinois corporation. [1, ¶ 4.] Defendant Takeda Pharmaceuticals of North America, Inc. (“TPNA”), according to Plaintiff, is a wholly-owned subsidiary of Takeda Chemical Industries, Ltd. (“Takeda Ltd.”). [Id., ¶ 5.] Defendant TAP Pharmaceutical Products, Inc. (“TAP”), according to Plaintiff, is a New York corporation operating as a joint venture between Takeda Ltd. and Abbott. [Id., ¶ 6.] Takeda and Abbott each owned and controlled a fifty percent stake in TAP during the relevant time period. [Id.] Also named in the caption as a Defendant is Takeda Chemical Industries, Inc. (“Takeda Inc.”). The complaint contains no allegations regarding Takeda Inc., nor does it mention that entity anywhere but the caption. However, the complaint does allege that Takeda Ltd. is the parent company of TPNA and is a fifty-percent owner of TAP. [Id., ¶¶ 5-6.]

         Defendants dispute several of Plaintiff's allegations regarding Defendants TPNA, Takeda Inc., and TAP. According to Defendants, TPNA is the former name of the company now known as Takeda Pharmaceuticals U.S.A. (“TPUSA”). [See 97, at 4.] Takeda Inc., according to Defendants, does not exist as a corporation. [Id.] To the extent that, in Plaintiff's references to Takeda Inc., Plaintiff meant to refer to Takeda Ltd., Defendants state that Takeda Ltd. is now known as Takeda Pharmaceutical Company Ltd. (“Takeda Pharmaceutical Ltd.”). [Id.] Takeda Pharmaceutical Ltd. is a Japanese corporation headquartered in Japan. [Id.] TPUSA is a wholly-owned subsidiary of Takeda Pharmaceutical Ltd. [Id., at 5.]

         According to Defendants, TAP no longer exists as an entity. At the time Plaintiff alleges that she received her injections in 2004, TAP was responsible for the Lupron business in the United States. [97, at 3.] TAP was jointly and equally owned by Takeda America Holdings (a wholly-owned subsidiary of Takeda Ltd.) and Abbott. [Id., at 3.] In April 2008, TAP concluded as a joint venture, and Abbott exchanged its fifty-percent equity interest in TAP for the assets, liabilities, and employees related to TAP's Lupron business. [Id] Abbott then spun off the Lupron business into a separate publicly-traded company, AbbVie Inc. (“AbbVie”), in 2012. [100, at 2.] In July 2008, TAP was merged into TPNA and dissolved. [97, at 4.] As a Delaware corporation, TAP continued as a corporate body for three more years (until 2011) before completely ceasing to exist. [ Id. (citing 8 Del. C. § 278).]

         Turning back to Plaintiffs substantive allegations against Defendants, Plaintiff alleges that TAP was at all relevant times responsible for the research, development, testing, manufacturing and sales, distribution, and/or marketing of Lupron. [1, ¶ 8.] TAP focused its marketing efforts on securing Lupron use and sales by physicians. [Id., ¶ 7.] Plaintiff also alleges that Defendants Abbott, Takeda Ltd., and TPNA direct and control TAP and are therefore responsible for its actions in conducting these activities.[3] [Id., ¶¶ 7-9.] Plaintiff further alleges that Abbott, Takeda Ltd., and TAP, by agreement, jointly developed and marketed pharmaceutical products for the American and Canadian markets. [Id., ¶ 7.] Plaintiff alleges that Defendants knew or should have known of long-term health problems associated with the use of Lupron but failed to adequately inform Plaintiff or Plaintiffs physician of these risks in Lupron's prescribing information, promotional documents, and applications for FDA approval.[4][Id., ¶¶ 15-18.]

         C. Procedural History

         Although the instant action was recently transferred to this Court's docket in October 2017, it has an extensive procedural history. The Court will set out the factual and procedural background of this longstanding litigation as it pertains to the current action. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (explaining that a court may take judicial notice of matters in public record, including court documents, in deciding a motion to dismiss without converting it to a motion for summary judgment).

         Plaintiff (along with other plaintiffs no longer involved in the case) originally filed suit against Abbott, TPNA, Takeda Inc., and TAP in April 2010 in the Eastern District of New York. The case was then transferred to the Southern District of New York before ultimately being transferred to the Northern District of Illinois in July 2011. [See Cardenas v. Abbott Laboratories, 11-cv-4860 (N.D. Ill.) (the “First Lawsuit”), (Transfer Order), 30.]. In the order transferring the case to the Northern District of Illinois, the Southern District of New York dismissed Defendant Takeda Ltd. (named in the complaint as Takeda Inc.) as a party because it was not served with process and Plaintiffs moved that it be removed as a party defendant. [Id., at 1 n.1.]

         The case proceeded in the Northern District of Illinois before Judge Gottschall. Judge Gottschall granted the Defendants' motion to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and granted Plaintiffs leave to file an amended complaint. [First Lawsuit (Memorandum Opinion & Order), 42]. Plaintiffs filed an amended complaint in October 2011, [see First Lawsuit, (Second Amended Complaint), 45], and the case proceeded to discovery.

         In August 2013, Plaintiffs then-counsel moved to withdraw from the case. [First Lawsuit, (Motion to Withdraw), 106.] Judge Gottschall granted the motion, [see id, (Order), 107], and ordered Plaintiff to file an appearance within 30 days of the court's order or the action would be dismissed for want of prosecution. Plaintiff did not file an appearance, and the case was dismissed on October 1, 2013. [See id, (Order), 115.] Plaintiffs mother then sent the court a letter asking that Plaintiffs case be reinstated, [see id, (Letter), 119], and Plaintiff moved to vacate the dismissal on October 30, 2013. [See id, (Motion to Vacate Dismissal for Want of Prosecution), 123]. The court granted the motion over Defendants' objection, and the case was reinstated. [Id., (Order), 142.] Plaintiff then voluntarily dismissed the case on May 28, 2014. [Id., (Notice of Voluntary Dismissal), 143.] On April 24, 2015, Plaintiff, through newly-acquired counsel, moved to reopen the case. [Id., (Motion to Reopen Case), 146.] The court denied the motion sua sponte on April 30, 2015. [Id., (Order), 147.]

         Plaintiff then filed a new complaint against Abbott, TPNA, Takeda Inc., and TAP in the instant action on May 11, 2015. [See 1.] This complaint brings seven causes of action against all Defendants: (1) negligence; (2) strict products liability; (3) strict products liability-failure to warn; (4) breach of express warranty; (5) breach of implied warranty; (6) fraudulent misrepresentation; and (7) negligent misrepresentation.[5] [See 1, ¶¶ 22-73.]

         Plaintiffs complaint states that it is re-filed pursuant to the Illinois savings statute, 735 ILCS 5/13-217.[6] [Id., ¶ 2.] All Defendants moved to dismiss the complaint in July 2015. [See 25; 28.] Judge Gottschall denied the motions without prejudice pending resolution of the issue of the timeliness of Plaintiff s re-filed suit. [See 52.] Specifically, the parties disputed whether the Illinois savings statute actually applies to the action, or whether the Georgia limitations period would apply instead by operation of the Illinois borrowing statute.[7] The answer to this question is dispositive, because the Georgia limitations period provides a six-month re-filing period for a voluntarily dismissed complaint as opposed to Illinois's one-year re-filing period. See Ga. Code Ann. § 9-2-61(a). Plaintiffs re-filed complaint was filed more than six months, but less than one year, after the voluntary dismissal of the First Lawsuit.

         The answer to this dispositive threshold question turns on whether Defendant Abbott, the only current Illinois citizen in the case, is a real party in interest to this action (in other words, whether it is a potentially liable defendant)-if it is not, then the Georgia re-filing period would apply via the Illinois borrowing statute, and this action would be untimely. Therefore, Judge Gottschall allowed limited discovery to proceed on Abbott's contention that it is not a real party in interest and denied all pending motions without prejudice pending resolution of this issue. [52, at 5.]

         After this limited discovery period concluded, Abbott moved for summary judgment on the threshold issue of whether it is a real party in interest to this lawsuit. [See 70]. Judge Gottschall denied the motion. [See 95.] Specifically, Judge Gottschall found that a genuine issue of material fact exists as to whether Abbott is a real party in interest to the action. [See id, at 12.] Abbott had argued that it was not a real party in interest because, at the time Plaintiff received her Lupron injections in 2004, Lupron was manufactured by Takeda Ltd. in Japan and distributed in the United States by TAP: according to Abbott, at this time it was merely a peripheral party to the Lupron chain of distribution and thus not subject to liability. [Id., at 6.] Judge Gottschall found that Abbott “was responsible for every aspect of the distribution chain” and, as such, there was a genuine issue of material fact as to whether Abbott's role in the distribution chain was sufficient to create liability. [Id., at 12.] Therefore, Judge Gottschall denied summary judgment and stated that the parties were free to resubmit any dispositive motions that were previously denied without prejudice. [Id.]

         Defendants then re-submitted their previously-filed motions to dismiss in April 2017.[8][See 96; 99.] Defendants first argue that Takeda Inc. and TAP were not properly served and therefore all claims should be dismissed against them with prejudice pursuant to Rule 12(b)(5). [96, at 1.] Defendants also move to dismiss the complaint on several grounds pursuant to Rule 12(b)(6). First, Defendants argue that all of Plaintiff s causes of action against Takeda Inc., and all of her breach of express and implied warranty claims, are time-barred. [Id] Second, Defendants argue that the complaint fails to state any plausible claim for any causes of action against Defendants under Rule 8, and fails to plead the fraudulent misrepresentation cause of action with the specificity required by Rule 9(b). [Id. at 1-2; 99, at 1.] Finally, Defendants argue that Plaintiff fails to allege any wrongdoing by any specific Defendant and the complaint should be dismissed on that basis as well. [96, at 1; 99, at 1.] Defendants further argue that all of Plaintiff s claims should be dismissed with prejudice. [96, at 1; 99, at 2.] In October 2017, the action was transferred to this Court for all further proceedings, including disposition of these motions. [See 108.]

         II. Rule 12(b)(5) Motion to Dismiss

         A. Legal Standard

         Once a plaintiff files a lawsuit in federal court, the plaintiff must ensure that each defendant receives a summons and a copy of the complaint against it. Fed.R.Civ.P. 4(b), (c)(1). Unless the plaintiff can demonstrate good cause for being unable to do so, she must accomplish this service of process within 90 days of filing to avoid possible dismissal of the suit. Fed.R.Civ.P. 4(m).[9] These service requirements serve several purposes: they “provide notice to parties, encourage parties and their counsel to diligently pursue their cases, and trigger a district court's ability to exercise jurisdiction over a defendant.” Cardenas v. City of Chi., 646 F.3d 1001, 1004-05 (7th Cir. 2011) (citing Henderson v. United States, 517 U.S. 654, 672 (1996)) (other citations omitted). Generally, “a district court may not exercise personal jurisdiction over a defendant unless the defendant has been properly served with process, and the service requirement is not satisfied merely because the defendant is aware that he has been named in a lawsuit or has received a copy of the summons and the complaint.” United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008).

         “A defendant may enforce the service of process requirements through a pretrial motion to dismiss, ” at which point the plaintiff “bears the burden to demonstrate that the district court has jurisdiction over each defendant through effective service.” Cardenas, 646 F.3d at 1004-05. (citing Fed.R.Civ.P. 12(b)(5)) (other citation omitted). If the Court determines that the plaintiff has not met that burden and lacks good cause for not perfecting service, the Court must either dismiss the suit or specify a time within which the plaintiff must serve the defendant. Fed.R.Civ.P. 4(m); United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006). The Court's decision on a Rule 12(b)(5) motion is “inherently discretionary.” Cardenas, 646 F.3d at 1005 (citing Ligas, 549 F.3d at 501). In making its determinations on a Rule 12(b)(5) motion, a court may consider affidavits and other documentary evidence. See Zausa v. Pellin, 2017 WL 2311232, at *4 (N.D. Ill. May 26, 2017); Dumas v. Decker, 2012 WL 1755674, at *2 (N.D. Ill. May 16, 2012).

         B. Analysis

         1. Defendant TAP

         Defendants argue that TAP was not properly served and therefore the complaint should be dismissed against it as a Defendant. Plaintiff's proof of service indicates that TAP was served by delivering a copy of the summons and complaint to CT Corporation System in Chicago, Illinois. [See 18.] But, according to Defendants, TAP no longer exists as a corporation and therefore could not have appointed CT Corporation System as its registered agent authorized to accept service. [See 97, at 9; 100, at 2.] TAP, as a joint venture between Abbott and Takeda Ltd. ended in April 2008, and Abbott at that time exchanged its fifty-percent interest in TAP for the assets, liabilities, and employees related to TAP's Lupron business. [100, at 2.] In July 2008, TAP merged into TPNA and dissolved as a corporation. [97, at 4.] Also, according to Defendants, in December 2012 Abbott split into two separate publicly-traded companies. At that time, all of its Lupron-related business went to AbbVie. [100, at 2.] Thus, AbbVie currently holds all of TAP's liabilities related to Lupron. [107, at 5.] TAP, meanwhile, as a Delaware corporation, continued its existence as a body corporate for three years beyond the end of the joint venture under Delaware law, before completing ceasing to exist in 2011. [97, at 4.]

         Plaintiff does not contest the assertion that TAP no longer exists. [See 104, at 4.] Instead, Plaintiff argues that the process through which TAP dissolved-by merging into TPNA-means that TPNA inherited TAP's liabilities. Therefore, Plaintiff argues, TPNA “is the logical entity to serve on TAP's behalf, ” and, since TPNA has not contested service, she has properly served the right party to effectively serve TAP. [Id., at 5.]

         The Court concludes that Plaintiff has not met her burden to demonstrate that she effectively served TAP with process in this case. As an initial matter, the Court rejects Plaintiff's contention that Defendants have waived any arguments related to proper service by filing dispositive motions and engaging in discovery. “[T]he federal rules permit defendants to simultaneously seek relief and raise a jurisdictional defense without waiving that defense.” Ligas, 549 F.3d at 502; see also Fed.R.Civ.P. 12(b) (Rule 12(b) defenses may be asserted by motion before pleading if a responsive pleading is allowed); Fed.R.Civ.P. 12(g)(1) (“A motion under this rule may be joined with any other motion allowed by this rule.”). Defendants raised the issue of insufficient service of process by motion from the outset of this case in 2015. [See 28.] This motion was denied without prejudice to give the parties, specifically Plaintiff and Abbott (not TAP or any of the other Takeda-related Defendants), the opportunity to conduct discovery on a limited threshold issue. Once Judge Gottschall denied summary judgment on that threshold issue, she granted the parties leave to resubmit any dispositive motions that were previously denied without prejudice. [95, at 12.] Defendants once again raised the issue of TAP's service by motion. [See 96.] Thus, Defendants have not waived the issue of service through the filing of their dispositive motions. Furthermore, even if TAP had participated in the court-ordered discovery in this case (which appears to have only involved Abbott) the Seventh Circuit has held that “a defendant does not waive a jurisdictional argument when it properly raises the defense but participates in litigation at the district court's direction.” Ligas, 549 F.3d at 503 (citing IDS Life Ins. Co. v. SunAm. Life Ins. Co., 136 F.3d 537, 540 (7th Cir. 1998)). Because Judge Gottschall specifically directed the parties to proceed with limited discovery on a threshold issue, [see 52; 53], Defendants have not waived their jurisdictional arguments by participating in this process.

         Turning to the merits of TAP's position, the parties agree that TAP no longer exists as an entity. [See 97, at 4; 104, at 4-5.] Defendants have indicated that TAP dissolved in 2008 and support this fact through attaching Takeda Pharmaceutical Ltd.'s 2008 Annual Report. [See 97, Ex. A (Takeda Pharmaceutical Ltd. 2008 Annual Report), at 10.] Plaintiff does not dispute that this 2008 date is accurate. Therefore, the Court will take judicial notice of this document for purposes of confirming that TAP dissolved in 2008. See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997) (a court may take judicial notice of an adjudicative fact that is “not subject to reasonable dispute” and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”) (quoting Fed. R Evid. 201(b)).

         The parties also agree that TAP, when it did exist, was incorporated in Delaware. [97, at 4; 104, at 5].[10] Delaware law thus controls issues surrounding TAP's dissolution and how it affects the service issues in this case. See United States v. P.F. Collier & Son Corp., 208 F.2d 936, 937 (7th Cir. 1953) (“[A] dissolved corporation may thereafter be proceeded against either criminally or civilly only if authorized by the laws of the state of its incorporation.”). In Delaware, dissolved corporations “shall nevertheless be continued, for the term of 3 years from such * * * dissolution * * * [as] bodies corporate for the purpose of prosecuting and defending suits, whether civil, criminal or administrative, by or against them.” 8 Del. C. § 278; see also In re Krafft-Murphy Co., Inc., 82 A.3d 696, 705 (Del. 2013) (“Nothing in § 278 operates as a statute of limitations that would bar claims or extinguish a dissolved corporation's liability to third parties. It is the case-and our courts have frequently held-that as a body corporate a dissolved corporation ceases to exist and is not amenable to suit after the expiration of § 278's three year period”); cf. Centagon, Inc. v. Bd. of Directors of 1212 Lake Shore Drive Condominium Ass'n, 2001 WL 1491523, at *4-5 (N.D. Ill. Nov. 21, 2001) (holding that plaintiff, a dissolved Delaware corporation, had no standing to bring a lawsuit because “§ 278 is explicit in its mandate limiting the rights and activities of dissolved corporations”). Therefore, TAP as a body corporate ceased to exist in 2011, three years after it dissolved.

         Plaintiffs various arguments in opposition to Defendants' 12(b)(5) motion focus on tracing what happened to TAP's Lupron-related liabilities once the corporation dissolved and whether these liabilities were inherited by TPNA or by Abbott.[11] These arguments focus on the ultimate liability of TPNA, Abbott, or even AbbVie (the entity that Defendants definitively claim holds all of TAP's Lupron-related liabilities) for Plaintiff's claims stemming from TAP's activities in 2004. But Plaintiff's arguments mostly do not address the issue on which Defendants' 12(b)(5) motion is focused: whether Plaintiff actually effectuated service on TAP in 2015.

         Plaintiff does maintain that she effectively served TAP, arguing that Plaintiff's proper service on TPNA gives effect to service on TAP, because TAP dissolved into TPNA. [104, at 4.] But Plaintiff cannot effectively serve one corporation by serving a completely different corporation. See Hurtado v. 7-Eleven, Inc., 508 Fed.Appx. 564, 565 (7th Cir. 2013) (plaintiff did not adequately serve defendant corporation, despite plaintiff's contention that he did so, when plaintiff attempted to serve an independent franchisee of the defendant); see also Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882, 885 (8th Cir. 1996) (service of process on parent corporation was insufficient where plaintiffs had served process on officer of a subsidiary of that parent); Mock v. Tharaldson Co., 2000 WL 34031790, at *2 (N.D. Iowa Jan. 26, 2000) (service of process was insufficient where “[t]he defendant has shown that no legal entity was served with the complaint” before the deadline for service in Rule 4(m), and plaintiff merely argued that she had reasonably tried to serve a completely different corporation that did not exist). And, while Plaintiff argues that serving TPNA suffices for serving TAP, “nothing in the Federal Rules of Civil Procedure allows a judge to excuse service altogether.” McMasters v. United States, 260 F.3d 814, 817 (7th Cir. 2001).

         Moreover, Plaintiff has not demonstrated that any good cause exists for her failure to properly serve TAP within the time period provided by Rule 4(m) (which was 120 days at the time this suit was filed). The docket in the First Lawsuit demonstrates that the fact of TAP's dissolution was available to Plaintiff in 2011. See [First Lawsuit, (Transfer Order), 30, at 4] (noting that TAP “no longer exists as it has merged out of existence”). Moreover, the docket in this case demonstrates that Defendants first identified their Rule 12(b)(5) argument regarding TAP on July 6, 2015, [see 28], which was 56 days after the complaint was filed and thus well within the Rule 4(m) deadline (and well within the time for Plaintiff to either properly serve TAP or move the court for an extension of time in which to do so). Delaware law does provide ways to serve a dissolved Delaware corporation. See In re Krafft-Murphy Co., Inc., 2011 WL 5420808, at *3-4 (Del. Ch. Nov. 9, 2011) (rejecting argument that dissolved corporation is completely incapable of service after expiration of three-year statutory winding up period, but acknowledging that service on the dissolved corporation's attorney was insufficient and authorizing service by publication). But that does not mean that TAP, after it dissolved, could be served by serving a former registered agent or by serving the corporation into which it merged. See Mathias v. Angola Neck Park Prop. Owners Assoc., Inc., 2014 WL 6478844, at *1-2 (Del. Ch. Nov. 20, 2014) (recommending that service of process on corporation be quashed where three-year winding up period of ยง 278 had expired by the time plaintiffs filed the complaint, but noting that a receiver may be appointed ...


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