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Case 2:16-cv-02108-JAR-GLR

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Filed 05/13/16

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

ERIC M. MUATHE, and

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JULIE STOVER, and

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KASEY KING, and

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Case No. 16-cv-2108

LESTER MOORE, and

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RICHARD DICKERSON, and

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PATRICK DICKERSON, and

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FIRST AMENDED CIVIL COMPLAINT

TRAVIS CARLTON, and

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DUSTIN BLAIR, and

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MICHAEL L. KING, and

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THOMAS J. WALTERS, and

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DESIGNATED PLACE OF TRIAL

FREDERICK GRABLE, and

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STACY STEVENS, and

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ZACHARY WALDEN, and

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KANSAS CITY, KANSAS

JAMES BECKLEY, JR., and

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DANNY E. STEVENS, and

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JASE GREENWOOD, and

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REGGIE RHUE, JR.,

and

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JOE STOVER, and

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CHET STOVER, and

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HANNAH STOVER, and

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TONY SIMONS, and

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BO COY, and

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JURY TRIAL DEMANDED

TRENTIN CALTON, and

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KAREN CALTON, and

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KANDICE DUNCAN, and

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CLARK J. ANDERSON, and

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MATT MOORE, and

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MANDY DUNCAN, and

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MATT SCHWAB, and

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JOSH MOORE, and

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MAKAIHLAH GIBBS, and

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JENNIFER TURNBOUGH, and

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TRISTIN CRAMER, and

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DALLAS GARNER, and

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DREW CHRISTIANSEN, and

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BEN JAMES, and

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SHAWNA SMUTZLER, and

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KEVIN SEYBOLD, and

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WHITNEY COY, and

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MARC DOHERTY, and

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ROBBY PHILLIPS, and

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JOHN MACK, and

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Case 2:16-cv-02108-JAR-GLR

Document 5

LEONARD MACK, and STEVE MELTON, and DENI MELTON, and DAVID WILDERMAN, and JOHN CLOTHEIR, and BRIAN HAMM

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Plaintiffs,

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v.

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LORI BOLTON FLEMING, and KURT LOY, and MY TOWN MEDIA, INC., and JOE MANNS

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Defendants.

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Filed 05/13/16

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COMES NOW Plaintiffs Erick Muathe, Julie Stover, Kasey King, Lester Moore,

Richard Dickerson, Patrick Dickerson, Travis Carlton, Dustin Blair, Michael King, and

Thomas Walters, Ferederick Grable, Stacy Stevens, Zachary Walden, James Beckley, Jr.,

Danny Stevens, Jase Greenwood, and Reggie Rhue, Jr., Joe Stover, Chet Stover, Hannah

Stover, Tony Simons, Bo Coy, Trentin Calton, Karen Calton, Kandice Duncan, Clark J.

Anderson, Matt Moore, Mandy Duncan, Matt Schwab, Josh Moore, Makaihlah Gibbs,

Jennifer Turnbough, Tristin Cramer, Dallas Garner, Drew Christiansen, Ben James,

Shawna Smutzler, Kevin Seybold, Whitney Coy, Marc Doherty, Robby Phillips, John

Mack, Leonard Mack, Steven Melton, Deni Melton, David Wilderman, John Clotheir,

and Brian Hamm, (hereinafter collectively referred to as “plaintiffs”), by and through

their attorney Prince Adebayo Ogunmeno of Kansas City, Kansas, and amends their

petition for their cause of action against the defendants state and allege as follows:

PARTIES

1. The plaintiffs are individual persons, adult citizens of the United States, and at all

times material to this complaint are resident of this district.

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2. The defendant Lori Fleming (hereinafter referred to as “Fleming”) is an individual

person and at all times material is believed to be a resident of this district.

3. The defendant Kurtis Loy (hereinafter referred to as “Loy”) is an individual person

and at all times material to this complaint is believed to be a resident of this district.

4. The defendant My Town Media, Inc., is a corporate entity organized by virtue of the

laws of the State of Kansas is believed to be a resident of this district.

5. The defendant Joe Mann (hereinafter referred to as Mann), is an individual person,

and is believed to be a resident of this district.

6. At all times relevant to this action, the defendant Mann was defendant My Town

Media, Inc’s employee and/or agent, and was acting within the scope of, and in

furtherance of his employer’s business interest.

JURISDICTION AND VENUE

7. The above paragraphs are incorporated by reference.

8. This cause of action arises out of denial and/or impairment of plaintiffs’

constitutional, civil rights, and political rights which occurred within this district.

9. Jurisdiction lies with this court pursuant to federal question jurisdiction under 28

U.S.C. §1331; 28 U.S.C. §1343(1)(2)(3)(4); and 42 U.S.C. §1981, §1983, §1985 the

First, Fourth, and Fourteenth Amendments to the United States Constitution.

10. Venue is proper in this court pursuant to 28 U.S.C. §1391 in that all the defendants

are resident of this district and all the acts or omissions which gave rise to this cause

of action occurred within this district.

11. The plaintiffs invoke the pendent and/or supplemental jurisdiction of this Court to

hear and decide claims arising under state law pursuant to 28 U.S.C. §1367.

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FACTS

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12. The above paragraphs are incorporated by reference.

13. On or about February, 2015, the plaintiffs formed a group named Summary Judgment

Group, an unregistered association, to advance their constitutional rights to freedom

of speech and the rights to petition the government as enshrined in the First

Amendment to the United States Constitution, including expression of their

displeasure with perceive conflict of interests between local attorneys and judges in

handling cases in Crawford County District Court system.

14. In pursuit of their constitutional and civil rights, plaintiffs began a petition drive to

summon a grand jury to remove sitting Crawford County District Judges, including

defendant Fleming and Loy.

15. In furtherance of their goal and legal requirements of collection of sufficient

registered voters’ signatures, plaintiffs approached defendant My Town Media, Inc.,

who operates a local radio station commonly known as 100.7 ESPN to purchase radio

advertisement spots.

16. On February 16, 2015, plaintiffs entered into a contractual agreement with defendant

My Town Media, Inc., for an advertisement spots on defendant’s F.M. 100.7 ESPN

radio station.

17. The parties agreed plaintiffs’ signature drive advertisement spot will air during a

popular morning sport show commonly known as “Mike and Mike” at 7:55 a.m. each

day for 30 days.

18. In exchange plaintiffs agreed and paid defendant My Town Media, Inc., the agreed

fees for airing plaintiffs’ advertisement spots for 30 days.

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19. In addition, the parties’ agreed that the defendant My Town Medical, Inc., will create

and produce the content of the plaintiffs’ signature drive advertisement spots.

20. On February 16, 2015, the plaintiffs tendered full payment of the advertisement

purchase to defendant My Town Medical, Inc.

21. On or about February 17, 2015, the defendant My Town Media, Inc., created and

produced the sample advertisement spot for plaintiffs’ review and approval.

22. The plaintiffs relied entirely on defendant My Town Media, Inc., experience and

expertise in radio advertisement creation; and based on defendant’s suggestions and

recommendations, plaintiffs approved the advertisement spot the defendant My Town

Media, Inc., created and produced for publication.

23. On February 18, 2015, and February 19, 2016, the defendant My Town Media, Inc.,

ran plaintiffs’ signature drive campaign advertisement spots as the parties agreed.

24. Information has it that on February 19, 2015, the defendant Fleming and Loy became

aware of the plaintiffs’ signature drive campaign advertisement on FM 100.7 ESPN

radio station.

25. According to information and belief, the defendant Fleming and Loy agreed to use

their positions as Crawford County District Court Judges to stop plaintiffs’ radio

signature drive advertisement.

26. Information further has it that defendant Fleming and/or Loy contacted defendant My

Town Media, Inc., and its employee and/or agent Mann and prevailed on them to join

the conspiracy and then jointly made the decision to stop running plaintiffs’ signature

drive radio advertisement immediately.

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27. Information further has it that defendant Fleming in furtherance of the agreement with

defendant Loy convinced defendant My Town Media, Inc., and its employee and/or

agent defendant Mann to join in the conspiracy and act together to stop plaintiffs’

signature drive and radio campaign.

28. Within hours after defendant Fleming contacted defendant My Town Media, Inc.,

and its employee and/or agent Mann On February 19, 2015, the defendant My Town

Media, Inc., acting through its employees and/or agents pulled the plaintiffs’

signature drive advertisement campaign off the air.

29. Further, after the defendant My Town Media, Inc., pulled plaintiffs’ signature drive

advertisement off the air, defendant advised plaintiffs it cancelled the radio

advertisement contract because the content violated the Federal Communication

Commission (herein after referred to as “FCC) rules governing radio advertisement.

30. Plaintiffs suggested to defendant My Town Media, Inc., to recreate and to make the

content of plaintiffs’ signature drive advertisement conform to FCC rules.

31. However, the defendant My Town Media, Inc., refused plaintiffs’ offers and

suggestions in furtherance of their conspiracy to deny plaintiffs their constitutional

and civil rights.

COUNT ONE DEFENDANTS VIOLATED PLAINTIFF’S RIGHTS UNDER 42 U.S.C § 1985

32. The above paragraphs are incorporated by reference.

33. Plaintiffs are members of a private citizen class-based protected group, and plaintiffs

are involved in a protected speech and actions under the First Amendment to the

United States Constitution.

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34. In furtherance of plaintiffs’ constitutional right under the First Amendment to the

Constitution, plaintiffs began a signature drive to gain community support for their

cause.

35. Shortly thereafter plaintiffs, individually and as a group, contracted with defendant

My Town Media, Inc., to create and produce a radio advertisement to promote their

cause.

36. The defendant Fleming, Loy, and My Town Media, Inc., agreed among themselves to

deprived plaintiffs of their Constitutional and First Amendment rights by bringing

about the termination of plaintiffs’ radio advertisement.

37. The defendant Fleming, Loy, and My Town Media, Inc., actions were motivated by

defendant Fleming and Loy invidious discriminatory animus against plaintiffs

individually and as members of a protected class and because plaintiffs were engaged

in protected activities.

38. As a direct and proximate result of defendants’ wrongful actions and conspiracy,

plaintiffs suffered deprivation of their civil rights under the First Amendment to the

United States Constitution.

WHEREFORE, plaintiffs pray the court for judgment against defendant Fleming,

Loy, and My Town Media, Inc., for actual and punitive damages, for plaintiffscosts,

including reasonable attorney fees, and for all other reliefs the court find just and proper.

COUNT TWO DEFENDANT VIOLATED PLAINTIFF’S RIGHTS UNDER 42 U.S.C § 1981

39. The above paragraphs are incorporated by reference.

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40. Plaintiffs are members of a private citizen class-based protected group, and plaintiffs

were engaged in protected speech and protected activities under the First Amendment

to the United States Constitution.

41. On February 19, 2015, there was in existence a valid contract between plaintiffs and

defendant My Town Media, Inc. of which defendant Fleming and Loy possessed

knowledge of the existence.

42. By the actions and/or inactions described in the preceding paragraphs, the defendant

Fleming and Loy willfully and intentionally interfere, impede, and brought about the

breach and termination of the existing radio advertisement contract between the

plaintiffs and the defendant My Town Media, Inc.

43. The defendant Fleming, Loy, and My Town Media, Inc., actions was motivated by

defendants’ invidious discriminatory animus against plaintiffs individually and as

members of a protected class and/or because plaintiffs were engaged in protected

activities.

44. As a direct and proximate cause of the defendants’ wrongful and intentional

interference with plaintiffs’ contractual relationship with defendant My Town Media.,

Inc., plaintiffs suffered harm and damages for which they are entitled to recover

compensatory damages from the defendant Fleming and Loy.

WHEREFORE, plaintiffs pray the court for judgment against defendant Fleming,

Loy, and My Town Media, Inc., for actual and punitive damages, for plaintiffs’ costs,

including reasonable attorney fees, and for all other reliefs the court find just and proper.

COUNT THREE DEFENDANTS VIOLATED PLAINTIFF’S RIGHTS UNDER 42 U.S.C § 1983

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45. The above paragraphs are incorporated by reference.

46. Plaintiffs are members of private citizen class-based protected group, and plaintiffs

were engaged in protected speech and activities under the First Amendment to the

United States Constitution.

47. The plaintiffs were exercising their rights under the First Amendment to the United

States Constitution when the defendants acting in concert conspired and used the

color of their public office and position to interfere with, and to cause plaintiffs’

signature drive radio advertisement campaign to be withdrawn and pulled off the air,

and their contract with My Town Media, Inc., cancelled.

48. That the defendant Fleming and Loy’s actions was motivated by defendants’

invidious discriminatory animus against plaintiffs individually and as members of a

protected class and because plaintiffs were engaged in protected activities.

49. As a direct and proximate cause of the defendants’ wrongful and intentional

interference with plaintiffs’ contractual relationship with defendant My Town Media.,

Inc., the plaintiffs suffered harm and damages for which they are entitled to recover

compensatory damages from the defendant Fleming and Loy.

WHEREFORE, plaintiffs pray the court for judgment against defendant Fleming,

Loy, and My Town Media, Inc., for actual and punitive damages, for plaintiffs’ costs,

including reasonable attorney fees, and for all other reliefs the court find just and proper.

COUNT FOUR BREACH OF CONTRACT

50. The above paragraphs are incorporated by reference.

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51. On February 16, 2015, the plaintiffs individually and as member of an unregistered

association entered into a radio advertisement contract with the defendant My Town

Media, Inc., on behalf of, and for the benefit of all plaintiffs.

52. The defendant My Town Media, Inc., promised to create the content and produce a

radio advertisement for plaintiffs’ signature drive for a grand jury petition; in

exchange the plaintiffs promised to pay defendant its usual and customary charges for

such radio spot for a 30 days run.

53. In addition, the parties’ agreement imposes the general contractual duties and

obligations, including but not limited to a duty to act in good faith.

54. The plaintiffs have fully performed their obligations under the partiescontract by

payment to defendant My Town Media, Inc., in advance, the agreed contract amount.

55. However, the defendant breached the parties’ contract when it withdrawn and refused

to continue to run plaintiffs’ signature drive radio campaign after it ran it for just two

days out of the 30 days agreed to in the parties’ contract.

56. The actions taken and/or not taken by the defendants constitute a breach of contract

under Kansas law.

57. As a result of the defendants’ breach of the parties’ agreement the plaintiffs suffered

injury for which they are entitled to recover compensatory damages from the

defendant.

WHEREFORE, the plaintiffs pray the court for judgment against the defendant

My Town Media, Inc., in an amount that is just and reasonable, for their costs, including

reasonable attorney fees, if appropriate, and for all other reliefs the court find just and

proper.

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COUNT FIVE - FRAUD

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58. The above paragraphs are incorporated by reference.

59. On February 19, 2015, the defendant Mann while acting within the scope of his

employment and/or as an agent of the defendant My Town Media, Inc., told the

plaintiffs that the FCC ordered them to withdraw and took off the air the plaintiffs’

signature drive radio spot airing on defendant’s radio because the advertisement

violated the FCC rules.

60. The defendant Mann while acting as defendant My Town Media, Inc., employee,

agent and/or ultra ego knew the representation that plaintiffs’ signature drive

advertisement defendant My Town Media, Inc., created and produced for plaintiffs

violated FCC rules was false and untrue statement at the time he made the statement

and representation to plaintiffs.

61. That the defendant Mann willfully and intentionally made the false and untrue

statement for the purpose of inducing plaintiffs to act upon the representation.

62. That the plaintiffs reasonably relied and acted upon the false and untrue

representation the defendant Mann made to them to their detriment.

63. As a direct and proximate cause of the defendants’ wrongful actions, the plaintiffs

sustained damages by relying upon the defendant Mann false and untrue

representation.

WHEREFORE, the plaintiffs pray the court for judgment against the defendant

Joe Mann and defendant My Town Media, Inc., pursuant to respondent superior doctrine

in an amount in excess of $75, 000.00, for their costs, for all other reliefs the court find

just and proper.

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COUNT SIX TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

64. The above paragraphs are incorporated by reference.

65. On February 19, 2015, there was in existence a valid contract between plaintiffs and

defendant My Town Media, Inc.

66. The defendant Fleming and Loy possessed knowledge of an existing radio

advertisement contract between plaintiffs and defendant My Town Media, Inc.

67. By the actions and/or inactions described in the preceding paragraphs, the defendant

Fleming and Loy willfully and intentionally brought about the breach of the existing

radio advertisement contract between the plaintiffs and the defendant My Town

Media, Inc.

68. The defendant Fleming and Loy have no legal excuse or legal justification to cause

the breach of the existing contract between plaintiffs and My Town Media, Inc.

69. As a direct and proximate cause of the defendants’ wrongful and intentional

interference with plaintiffs’ contractual relationship with defendant My Town Media.,

Inc., the plaintiffs suffered harm and damages for which they are entitled to recover

compensatory damages from the defendant Fleming and Loy.

WHEREFORE, the plaintiffs pray the court for judgment against the defendant

Fleming and Loy in an amount in excess of $75, 000.00, for their costs, for all other

reliefs the court find just and proper.

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COUNT SEVEN DEFAMATION

70. The above paragraphs are incorporated by reference.

71. By the actions and/or inactions described in the preceding paragraphs above, the

defendant Fleming made a false and defamatory statement that plaintiffs individually

and as a group are members of Possee Comitatus group, a known violent white

supremacist, right-wing, and anti-government group, when in fact the defendants

knew and/or have reasons to know that the statement is false and untrue.

72. The defendants published and/or communicated the false and defamatory statement to

third persons.

73. The defendant Fleming willfully and intentionally made the false and defamatory

statement with the intent to expose plaintiffs to public hatred, contempt and/or

ridicule.

74. Further, the defendant Fleming willfully and intentionally made the false and

defamatory statement with the intent to deprive plaintiffs of the benefits of public

confidence and social acceptance.

75. As a direct and proximate cause of the defendants’ wrongful and egregious false

statement, the plaintiffs suffered harm and damages to their individual reputations in

the community.

WHEREFORE, the plaintiffs pray the court for judgment against defendant Lori

Fleming individually and/or severally in an amount in excess of $75,000.00, for their

costs, and for award of all other reliefs the court finds to be just and proper.

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DEMAND FOR JURY TRIAL

Plaintiff demands trial to the jury of all disputed issues in this cause.

Respectfully submitted,

/s/ Adebayo Ogunmeno

Prince Adebayo Ogunmeno KS # 14808 155 S. 18 th Street, Suite 250 Kansas City, Kansas 66102-5654 Tel. (913) 233-2133 aikogun@ogunmenolawfirm.com Attorney for the Plaintiff.

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