Class Action Complaint and Jury Trial Demand (D.N.J., Dkt. 1, July 9, 2020)
Summary
Class Action Complaint and Jury Trial Demand filed 07/09/20 in the District of New Jersey by Camilo Antonio Garcia Valerio, on behalf of himself and other similarly situated persons, against Bob's Discount Furniture, LLC, XPO Last Mile, Inc., Mike Skirvin, and Karl Meyer. It seeks damages under the New Jersey Wage and Hour Law, the New Jersey Wage Payment Law and unjust enrichment for unpaid or underpaid overtime wages and unlawful deductions. The complaint alleges that drivers and helpers based at the Swedesboro Facility were paid through the motor carrier United Group Imports, Inc. and were paid $200.00 per day for drivers and $150.00 per day for helpers. The relief sought includes liquidated damages equal to 200 percent. The signature block names Ravi Sattiraju of Sattiraju & Tharney, LLP.
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“Class Action Complaint and Jury Trial Demand (D.N.J., Dkt. 1, July 9, 2020).”
Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cv-08536-dkt-1-d-n-j-e2c14d460a/
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMILO ANTONIO GARCIA VALERIO,
Civil Action No.:
On behalf of himself and all other
similarly situated persons,
Plaintiffs,
v.
BOB’S DISCOUNT FURNITURE, LLC, XPO
LAST MILE, INC., MIKE SKIRVIN, KARL
MEYER, ABC CORPS. 1-10 and JANE & JOHN CLASS ACTION COMPLAINT AND
DOES 1-10, JURY TRIAL DEMAND
Defendants.
COMPLAINT – CLASS ACTION
1. Plaintiff Camilo Antonio Garcia Valerio (“Plaintiff”), on behalf of himself and all
other similarly situated persons, brings this class action lawsuit against Defendants Bob’s Discount
Furniture, LLC, XPO Last Mile, Inc., Mike Skirvin, Karl Meyer, ABC Corps. 1-10 and Jane and
John Does 1-10, to recover damages under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-
56a, et seq. (the “NJWHL”), the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1, et seq. (the
“NJWPL”)1 and the doctrine of unjust enrichment for unpaid and/or underpaid overtime wages
and unlawful deductions withheld or diverted from their wages.
1
Plaintiff and the putative class members’ NJWHL and NJWPL claims are asserted to the full
extent and reach of those laws including, but not limited to, the extent to which those laws are
further implemented and bolstered by the New Jersey Wage Collection Law, N.J.S.A. 34:11-57,
et seq. (the “NJWCL”).
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JURISDICTION AND VENUE
2. Jurisdiction is proper under 28 U.S.C. § 1331 because this action arises under the
Class Action Fairness Act (“CAFA”). See 28 U.S.C. § 1332(d).
3. Venue is proper under 28 U.S.C. § 1391(b)(2) because this is the judicial district in
which a substantial part of the events or omissions giving rise to the claims occurred. Plaintiff
made a number of deliveries at the direction and control of the Defendants throughout the State of
New Jersey out of a base of operations located within the State of New Jersey.
PARTIES
4. Plaintiff Camilo Antonio Garcia Valerio is a natural person and a citizen of the
Commonwealth of Pennsylvania and has been employed by Defendants since December of 2019
in the Borough of Swedesboro in the County of Gloucester in the State of New Jersey.
5. Defendant Bob’s Discount Furniture, LLC (“BOB’S”), is a limited liability
company organized and existing under the laws of the Commonwealth of Massachusetts with
corporate headquarters located at 428 Tolland Turnpike in the Town of Manchester, County of
Hartford and State of Connecticut.
6. Defendant BOB’S is in the business of selling furniture and goods to customers and
operates stores and locations in the Northeastern and Mid-Atlantic regions of the United States.
7. BOB’S business includes ensuring, directing and overseeing that its furniture or
goods are delivered to its customers in accordance with its Standard Operating Procedures
(“SOPs”) and Delivery Operation Requirements (“DORs”).
8. Defendant XPO Last Mile, Inc. (“XPO LM”) is a corporation organized and
existing under the laws of the State of Georgia with corporate headquarters located at 1851 West
Oak Parkway, Suite 100, in the City of Marietta, County of Cobb and State of Georgia.
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9. Defendant XPO LM is a third-party logistics company that operates as an
authorized freight forwarder for its clients, including retailers and distributors of furniture, such as
Defendant BOB’S in this case.
10. To effectuate its services for BOB’S, XPO LM enters into delivery service
agreements (“DSAs”) with entities and sole proprietorships that it terms “motor carriers”, “contract
carriers” or “service providers” (referred to hereinafter as “Motor Carriers” for the ease of
reference).
11. These Motor Carriers, who own or rent delivery trucks, in turn pay individuals,
colloquially known as “drivers” or “helpers”, to operate their trucks and complete deliveries of
BOB’S furniture and goods in accordance with BOB’S SOPs and DORs.
12. “Drivers” drive the trucks that deliver BOB’S furniture and goods from
Defendants’ facilities or warehouses to BOB’S customers. “Helpers” travel with the drivers to
assist with deliveries at Defendants’ facilities or warehouses, on the road and at customer homes.
13. At all times relevant herein, BOB’S and XPO LM both operated out of and/or
utilized a distribution facility located at 2185 High Hill Road in the Borough of Swedesboro,
County of Gloucester and State of New Jersey (the “Swedesboro Facility”).
14. At all relevant times herein, Defendant XPO LM provided its management and
logistic services to Defendant BOB’S at and out of the Swedesboro Facility.
15. One of the Motor Carriers XPO LM entered into a DSA with at the Swedesboro
Facility is an entity believed to be called “United Group Imports, Inc.”
16. United Group Imports, Inc. operates under the United States Department of
Transportation, Federal Motor Carrier Safety Administration license/USDOT number 2408110.
For all purposes herein, the term “United” shall refer collectively to United Group Imports, Inc.,
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any and all other persons or entities that operate or have operated under USDOT number 2408110,
and any and all predecessor or successor entities of United Group Imports, Inc.
17. United paid a number of drivers and helpers, at least more than forty (40), to
complete deliveries of BOB’S furniture and goods from the Swedesboro Facility utilizing delivery
trucks that United owned, rented or otherwise operated.
18. The Class of similarly situated Plaintiffs is defined as:
All individuals that were based out of the Swedesboro Facility that
performed truck driving and/or helper functions for Bob’s Discount
Furniture, LLC and XPO Last Mile, Inc., in or out of trucks owned, rented
or otherwise operated by the motor carrier, United, from July 9, 2014 to the
date of Judgment in this action. (Hereinafter the “Class Members”).
19. Defendant BOB’S was at all relevant times herein, an employer of the Plaintiff and
the Class Members as defined by the NJWHL.
20. Alternatively, Defendant BOB’S was at all relevant times herein, a “client
employer”, as defined by the New Jersey Wage-Theft Act, and is jointly and severally liable for
the New Jersey wage claims asserted herein by Plaintiff and the Class Members. See N.J.S.A.
34:11-58.2.
21. Defendant XPO LM was at all relevant times herein, an employer of the Plaintiff
and the Class Members as defined by the NJWHL.
22. Alternatively, Defendant XPO LM was at all relevant times herein, a “client
employer” and/or “labor contractor”, as defined by the New Jersey Wage-Theft Act, and is jointly
and severally liable for the New Jersey wage claims asserted herein by Plaintiff and the Class
Members. See N.J.S.A. 34:11-58.2.
23. Defendant Mike Skirvin (“Skirvin”) is a natural person whose citizenship and
residency are currently unknown to Plaintiff.
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24. Defendant Skirvin is Defendant BOB’S Chief Executive Officer and has at all
relevant times hereto “acted on behalf” of BOB’S with regard to its compliance with the NJWHL,
NJWPL, NJWCL and misclassification of Plaintiff and the Class Members as nonemployees
thereunder.
25. Defendant Skirvin is therefore personally or individually liable for Plaintiff and the
Class Members’ claims for damages under the NJWHL and NJWPL. See N.J.S.A. 34:11-58.2(c).
26. Defendant Karl Meyer (“Meyer”) is a natural person whose citizenship and
residency are currently unknown to Plaintiff.
27. Defendant Meyer is Defendant XPO LM’s Chief Executive Officer and has at all
relevant times hereto “acted on behalf” of XP OLM with regard to its compliance with the
NJWHL, NJWPL, NJWCL and misclassification of Plaintiff and the Class Members as
nonemployees thereunder.
28. Defendant Meyer is therefore personally or individually liable for Plaintiff and the
Class Members’ claims for damages under the NJWHL and NJWPL. See N.J.S.A. 34:11-58.2(c).
29. Defendants ABC CORPS. 1-10 and/or JANE and JOHN DOES 1-10 are currently
unknown entities and/or natural persons, designated by fictitious names herein, who may also be
liable to the Plaintiff and the Class Members in this matter.
SPECIFIC ALLEGATIONS
30. The Plaintiff has and does currently work as a truck driver delivering BOB’S
furniture and goods from the Swedesboro Facility to BOB’S various customer locations.
31. The Plaintiff and all Class Members were assigned to perform non-exempt tasks as
truck Drivers and/or Helpers for BOB’S and were based out of the Swedesboro Facility.
32. The Plaintiff and all Class Members began and ended each workday at the
Swedesboro Facility.
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33. BOB’S entered into business relationships with other entities, including XPO LM,
John and Jane Does 1-10 and ABC Corps. 1-10, to conceal the fact that it had an employer-
employee relationship with the Plaintiff and all Class Members.
34. At some time before or during the operation of the Swedesboro Facility, BOB’S
and XPO LM entered into one or more Master Agreements (the “MAs”), to govern BOB’S delivery
operations out of the Swedesboro Facility.
35. The MAs contains or references BOB’S SOPs and DORs which must be followed
to complete deliveries of BOB’S furniture and goods out of the Swedesboro Facility.
36. BOB’S SOPs and DORs are passed along from BOB’S to XPO LM who, in turn,
passes along the operational requirements to the Motor Carriers who sign DSAs and the drivers
and helpers paid by the Motor Carriers.
37. Specific to this case, the MAs require XPO LM to perform deliveries in accordance
with BOB’S SOPs and DORs and, in turn, XPO LM requires United and its drivers and helpers to
perform deliveries in accordance with BOB’S SOPs and DORs and any additional requirements
that XPO LM’s DSA with “United” may mandate.
38. The terms of the MAs, SOPs, DORs and DSA with United manifest and exhibit a
high level of control and direction by BOB’S and XPO LM as a matter of contract over the
performance of the delivery services performed by the Plaintiff and Class Members.
39. BOB’S and XPO LM also exert a high level of control and direction as a matter of
fact over the performance of the delivery services performed by the Plaintiff and Class Members.
40. BOB’S controls the manner and means in which the Plaintiff and all Class Members
perform their duties. Specifically, the Plaintiff and all Class Members all report to work at BOB’S
Swedesboro Facility; BOB’S requires background checks and drug screening prior to the
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commencement of work; BOB’S requires that all deliveries are made with tracking devices that
BOB’S then uses to score the performance of the Plaintiff and Class Members; BOB’S monitors
the work performance of the Plaintiff and Class Members and assigns work according to that
performance; BOB’S personnel point out areas of work improvement directly to Class Members
from time to time; Class Members must communicate with BOB’S employees while delivering
their routes during the workday, Class Members must handle paperwork and invoices with BOB’S
customers; Class Members are required to wear a BOB’S embroidered uniform; BOB’S requires
deliveries be made by two-person teams and determines which days of the week deliveries are to
be made; BOB’S provides a customer care department to report problems and issues that arise
during the workday; BOB’S requires the installation and assembly of its merchandise; BOB’S
requires Class Members to confirm deliveries; BOB’S assigns daily truck routes and time frames
for making deliveries; BOB’S personnel inspects the Swedesboro Facility to oversee the delivery
operation; and BOB’S maintains the authority to reprimand and terminate Plaintiff and all Class
Members.
41. XPO LM also controls the manner and means in which the Plaintiff and all Class
Members perform their delivery services. Specifically, XPO LM enforces all of BOB’S SOPs and
DORs at the Swedesboro Facility; XPO LM also requires background checks and drug screening
prior to the commencement of work; XPO LM also monitors the work performance of the Plaintiff
and Class Members and assigns work according to that performance; XPO LM conducts morning
standup meetings to: (i) discuss worker performance, (ii) provide instruction for performing
deliveries, (iii) provide instruction for performing product assembly, (iv) provide instruction for
performing product installation, (v) point out areas of delivery improvement; provide instruction
for providing good quality service, and (vi) enforce BOB’S uniform policy; XPO LM provides
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dispatch services at the Swedesboro Facility to assist with issues and problems that arise while
deliveries are being made; XPO LM personnel screen drivers and helpers before they can begin
work for a Motor Carrier; XPO LM personnel conducts audits and ride-behinds of the drivers and
helpers to monitor an gauge performance; and XPO LM also has the authority to reprimand and
terminate the Plaintiffs and all Class Members.
42. The Plaintiff and all Class Members’ delivery services were performed within the
usual course of Defendants’ businesses, specifically, to complete delivery BOB’S furniture and
goods to BOB’S customers.
43. The Plaintiff and all Class Members’ delivery services were performed within all
of the places of the Defendants’ businesses, specifically, at the Swedesboro Facility and at BOB’S
customers’ homes.
44. The Plaintiff and all Class Members did not operate independently established
businesses.
45. The Plaintiff and all Class Members are not independent contractors as defined by
N.J.S.A. 43:21-19(i)(6)(A)(B)(C), the test adopted and applied to “employment status” disputes
under the NJWHL and NJWPL by the Supreme Court of New Jersey in Hargrove v. Sleepy’s,
LLC, 220 N.J. 289 (N.J. 2015).
46. United was simply used as a tool or mechanism to surreptitiously attempt to insulate
BOB’S and XPO LM from liability under New Jersey’s wage laws and otherwise circumvent their
legal obligations thereunder.
47. Indeed, upon information and belief, United Group Imports, Inc. has not even been
licensed to conduct business within the State of New Jersey since the State of New Jersey, Division
of Revenue and Enterprise Services (“NJDOR”) suspended its license on September 16, 2016.
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48. Upon further belief, the NJDOR has only recently began procedures related to
United Group Imports, Inc.’s reinstatement to do business within this State.
49. The willingness of BOB’S and XPO LM to readily discharge their legal duties
under New Jersey’s wage laws upon an entity not licensed to do business further supports awards
of “liquidated damages” as provided for under the NJWHL and NJWPL.
50. The Plaintiff and all Class Members are not exempt under the New Jersey Wage
and Hour Law, N.J.S.A. 34:11-56a et seq.
51. The Plaintiff and all Class Members routinely work far in excess of forty (40) hours
per week for Defendants and are not paid 1.5 times their hourly rate or 1.5 times the minimum
wage rate when they work over forty (40) hours per week.
52. Plaintiff and all Class Members are paid on a daily, piecemeal basis of $200.00 per
day for drivers and $150.00 per day for helpers, regardless of the amount of hours they actually
work in excess of forty (40) hours per week.
53. Defendants’ ongoing uniform illegal policy of failing to pay Class Members for all
time worked has resulted in Class Members being denied substantial legally required
compensation and/or overtime payments given that Class Members routinely work in excess of
forty hours per week.
54. In addition, the wages earned by the Plaintiff and other Class Members are reduced
to account for various deductions, charges and/or expenses that do not benefit the Plaintiffs or
other Class Members. For example, the Plaintiff, like other Class Members, is subjected to
deductions, charges and/or expenses to cover the cost of the substandard housing of dozens of
workers in a single house in a manner which is inconsistent with N.J.A.C. 12:56-8.1 to -8.8
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(NJDOLWD regulations governing lawful “fair value” lodging credits under the wage laws) and
therefore amounts to an unlawful deduction in violation of the NJWPL.
55. Beginning in or around February of 2020, United, by and through Defendants
BOB’S and XPO LM, began issuing Plaintiff and the Class Members alleged “Earnings
Summar[ies]” (the “New Statements”).
56. The New Statements are a farce being utilized by an entity that is not even licensed
to do business in the State of New Jersey to further conceal the Defendants’ violations of New
Jersey law.
57. Plaintiff and the Class Members do not clock-in or clock-out of the Swedesboro
Facility on workdays so their actual hours worked cannot and are not being tracked in a manner
that provides a “complete, true and accurate record.” See N.J.A.C. 12:56-4.2.
58. Even if the Plaintiff and Class Members’ time spent making deliveries is being
accurately tracked by BOB’S electronic tracking devices, the tracking devices are not reporting
the hours spent each workday by the Plaintiff and all Class Members loading and unloading their
trucks before and after making their deliveries.
59. The hours being reflected on the New Statements are entirely fictional and are
wildly underreporting the amount of hours Plaintiff and all of the Class Members are actually
working within and out of the Swedesboro Facility.
CLASS ACTION ALLEGATIONS
60. The Plaintiffs bring this lawsuit as a class action, pursuant to Federal Rule of Civil
Procedure 23, on behalf of themselves and all other individuals who, at any time after June 2014,
performed delivery and other transportation related services in the State of New Jersey for
Defendants.
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61. Class action treatment is appropriate because, as summarized in Paragraphs 62 to
68 below, all of Rule 23’s requirements are satisfied.
62. The Class is so numerous that joinder of all Class Members is impracticable.
63. The Plaintiff is a Class Member, his claims are typical of the claims of other Class
Members and he has no interests that are antagonistic to or in conflict with the interests of other
Class Members.
64. The Plaintiff will fairly and adequately represent the Class Members and their
interests, and he has retained competent and experienced counsel who will effectively represent
the Class Members’ interests.
65. Questions of law and fact are common to all Class Members.
66. Common questions of law and fact predominate over questions affecting only
individual Class Members. These common questions include:
a. Whether the Class Members were misclassified and should have been treated
as “employees” by the Defendants for purposes of the New Jersey Wage and
Hour Law, N.J.S.A. 34:11-56a et seq.;
b. Whether the Class Members routinely worked in excess of forty (40) hours per
week for the Defendants;
c. Whether the Class Members were compensated with premium overtime pay for
all hours worked in excess of forty (40) hours per week; and
d. Whether this conduct violates the New Jersey Wage and Hour Law, N.J.S.A.
34:11-56a et seq.
e. Whether the Class Members had the costs of housing withheld from their wages
in violation of the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 et seq.
67. A class action is superior to other available methods for the fair and efficient
adjudication of this litigation.
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68. The prosecution of separate actions by individual members of the Class would run
the risk of inconsistent or varying adjudications. Prosecution as a class action will also eliminate
the possibility of repetitious litigation.
COUNT ONE
(NEW JERSEY WAGE AND HOUR LAW)
69. Plaintiff reasserts Paragraphs 1-68 as if set forth at length herein.
70. Defendants’ conduct against the Plaintiff and the Class Members violates the New
Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq., by failing to compensate the Plaintiff and
the Class Members for all hours worked, and not paying overtime when the Plaintiff and the Class
Members worked over 40 hours per week.
71. As a result of Defendants’ conduct, the Plaintiff and the Class Members have
endured significant economic damages.
COUNT TWO
(NEW JERSEY WAGE PAYMENT LAW)
72. Plaintiff reasserts Paragraphs 1-71 as if set forth at length herein.
73. Defendants’ conduct against the Plaintiff and the Class Members violates the New
Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 et seq., by reducing the wages paid to the Plaintiff
and the Class Members to account for various deductions, charges and/or expenses that do not
benefit the Plaintiff or other Class Members.
74. As a result of Defendants’ conduct, the Plaintiff and the Class Members have
endured significant economic damages.
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COUNT THREE
(UNJUST ENRICHMENT)
75. Plaintiff reasserts Paragraphs 1-74 as if set forth at length herein.
76. Defendants have been financially enriched by failing to the Plaintiff and the other
Class Members the appropriate overtime rate for all hours they worked in excess of forty (40)
hours per week and for unlawfully withholding unauthorized deductions from their wages.
77. The financial enrichment enjoyed by Defendants has come at the expense of the
Plaintiff and the other Class Members, all of whom have borne the unpaid and/or underpaid wages.
78. It is against equity and good conscience to permit Defendants to retain such unpaid
and/or underpaid wages.
79. Defendants should be required to reimburse the Plaintiff and all other Class
Members for such unpaid and/or underpaid wages under the doctrine of unjust enrichment.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiff Camilo Antonio Garcia Valerio seeks the following relief on
behalf of himself and the other Class Members:
a. Certify a class action pursuant Rule 23 of the Federal Rules of Civil Procedure and
appoint Plaintiff and his counsel to represent the Class;
b. Declare and find that the Defendants violated the New Jersey Wage and Hour Law,
N.J.S.A. 34:11-56a et seq.;
c. Declare and find that the Defendants violated the New Jersey Wage Payment Law,
N.J.S.A. 34:11-4.1 et seq.;
d. Award compensatory damages, including all unpaid and/or underpaid wages, in an
amount according to proof;
e. Award liquidated damages in an amount equal to 200 percent of the amount of the
unpaid or underpaid wages;
f. Award all costs, expenses and attorney’s fees, with appropriate enhancement, incurred
in prosecuting this claim;
g. Award pre-judgment and post-judgment interest at the highest rates allowed by law;
h. Injunctive relief in the form of an order directing Defendants to comply with New
Jersey law; and
i. Such other relief as in law or equity may pertain.
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JURY TRIAL DEMANDED
Plaintiff demands a jury trial as to all issues so triable.
Dated: July 9, 2020 Respectfully submitted,
East Windsor, New Jersey
By: s/ Ravi Sattiraju
SATTIRAJU & THARNEY, LLP
Ravi Sattiraju, Esq. (N.J. No. 035251998)
Anthony S. Almeida, Esq. (N.J. No. 024552005)
50 Millstone Road
Building 300, Suite 202
East Windsor, New Jersey 08520
Tel: (609) 469-2110
Fax: (609) 228-5649
Emails: rsattiraju@s-tlawfirm.com
aalmeida@s-tlawfirm.com
Attorneys for the Plaintiff and all other
similarly situated persons.
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LOCAL CIVIL RULE 11.2 CERTIFICATION
The undersigned hereby certifies under the penalty of perjury that this matter in controversy
is not the subject of any other action pending in any court, or of any pending arbitration or
administrative proceeding. The undersigned nevertheless discloses that there exists a similar action
captioned Espinal, et al. v. Bob’s Discount Furniture, LLC, et al., Civil Action No. 2:17-cv-02854-
JMV-JBC, pending within this District before the Honorable John Michael Vazquez, U.S.D.J.
However, that action arises out of entirely separate facilities located in Edison and Carteret, New
Jersey, and covers a distinct and separate class of workers.
s/ Ravi Sattiraju
RAVI SATTIRAJU, ESQ.
Date: July 9, 2020
East Windsor, New Jersey
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