Gordon v. Impulse Marketing Group Inc, No. 2:2004cv05125 - Document 482 (E.D. Wash. 2007)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS re 403 Motion. Signed by Judge Fred Van Sickle. (SAP, Case Administrator)

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Gordon v. Impulse Marketing Group Inc Doc. 482 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 JAMES S. GORDON, No. CV-04-5125-FVS Plaintiff, 6 7 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. 8 9 10 IMPULSE MARKETING, INC., JEFFREY GOLDSTEIN, PHILLIP HUSTON, and KENNETH ADAMSON, Defendants. 11 12 13 THIS MATTER comes before the Court on the Defendants’ Motion to 14 Dismiss the First Amended Complaint, Ct. Rec. 403. 15 represented by Robert J. Siegal. 16 Floyd Ivey, Sean A. Moynihan, and Peter Glantz. The Plaintiff is The Defendants are represented by 17 BACKGROUND 18 The Plaintiff, James S. Gordon, is a Washington resident and the 19 registered user of the internet domain name “gordonworks.com.” The 20 Defendants are Impulse Marketing Group, Inc. (“Impulse”), a Nevada 21 corporation, and three of its employees: Kenneth Adamson, Jeffrey 22 Goldstein, and Phil Huston. 23 company that transacts business with Washington by sending commercial 24 electronic mail messages ("email") to Washington state residents. 25 Impulse operates by collecting personally identifiable information 26 from individuals who sign up to receive free products and/or services Impulse is an electronic marketing ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 1 Dockets.Justia.com Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 at websites run by Impulse and/or its marketing partners. In 2 consideration for receiving free products and/or services from an 3 Impulse related website, it requires that individuals using its 4 websites agree to submit accurate personal subscriber information 5 (“Subscriber Profiles”). 6 individuals grant Impulse the right to transfer the Subscriber 7 Profiles to third parties for marketing purposes. 8 subscribes revenue from the licensing and/or use of accurate 9 Subscriber Profiles. By submitting their Subscriber Profiles, Impulse Marketing 10 The Plaintiff initiated the present lawsuit on November 23, 2004, 11 alleging that Impulse violated Washington's Commercial Electronic Mail 12 Act (“CEMA”), RCW § 19.190 et seq., and Washington's Consumer 13 Protection Act (“CPA”), RCW § 19.86 et seq., by initiating and/or 14 conspiring with others to initiate unsolicited commercial emails to 15 various addresses at Plaintiff's domain, “gordonworks.com.” 16 2006, the Court granted the Plaintiff's request to amend the Complaint 17 to include claims under the Federal CAN-SPAM Act (15 U.S.C. § 7701 et 18 seq.), Washington’s Deceptive Offers statute (RCW § 19 Washington’s Identity Crimes statute (RCW § 20 provision of CEMA (RCW § 19.190.080). 21 Plaintiff leave to name additional defendants, Jeffrey Goldstein, 22 Kenneth Adamson, and Phillip Huston, officers and/or directors of 23 Impulse. 24 On May 2, 19.170), 9.35), and a new The Court also gave the (Ct. Rec. 356). The Plaintiff filed his First Amended Complaint (“FAC”) on June 25 13, 2006. On August 31, 2006, the Defendants moved to dismiss the FAC 26 on a number of grounds. Without seeking leave of the Court, the ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 2 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 Plaintiff filed a Second Amended Complaint (“SAC”), Ct. Rec. 448-3, 2 along with their response to the motion to dismiss. 3 objected to the SAC as an unauthorized pleading. 4 sought leave to file the SAC. 5 request to file the Second Amended Complaint, but given the Plaintiff 6 leave to plead damages for his Prize Statute claim. 7 motion to dismiss the FAC is now before the Court. 10 The Plaintiff then The Court has denied the Plaintiff's The Defendants' DISCUSSION 8 9 The Defendants I. LEGAL STANDARD A complaint should not be dismissed for failure to state a claim 11 upon which relief may be granted under Federal Rule of Civil Procedure 12 12(b)(6) unless it "appears beyond doubt that the plaintiff can prove 13 no set of facts in support of his claim which would entitle him to 14 relief." 15 L. Ed. 2d 80, 84 (1957). 16 allegations are tested with a motion under Rule 12(b)(6), all factual 17 allegations set forth in the complaint are taken as true and construed 18 in the light most favorable to the plaintiff. 19 Co., 83 F.3d 1136, 1140 (9th Cir. 1996). 20 plaintiff the benefit of every inference that reasonably may be drawn 21 from well-pleaded facts. 22 Cir. 1998). 23 Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 When the legal sufficiency of a complaint's Epstein v. Wash. Energy The Court must give the Tyler v. Cisneros, 136 F.3d 603, 607 (9th The parties have submitted a number of declarations in support of 24 their briefing on the motion to dismiss. The Court will consider 25 these materials only in ruling upon the Defendants' challenge to 26 personal jurisdiction. A court may not generally consider material ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 3 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 beyond the pleadings in ruling upon a motion to dismiss. Thompson v. 2 Davis, 295 F.3d 890, 896 n.3 (9th Cir. 2002). 3 rely on the declarations submitted by the parties, the Court would be 4 obliged to convert the motion to dismiss into a motion to for summary 5 judgment. 6 n.4 (9th Cir. 1989). 7 time for consideration of declarations is generally at summary 8 judgment, after both parties have had an opportunity to conduct 9 discovery. If the Court were to Jackson v. Southern California Gas Co., 881 F.2d 638, 643 This the Court declines to do, as the proper The Court may and will consider the declarations and, if 10 necessary, resolve factual disputes in addressing the Defendants' 11 personal jurisdiction argument. 12 Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002). 13 II. 14 Inlandboatmens Union of the Pac. v. SUBJECT MATTER JURISDICTION This Court has subject matter jurisdiction pursuant to 28 U.S.C. 15 § 1332. 16 jurisdiction to hear civil cases where the parties are citizens of 17 different states and more than $75,000 is in controversy. 18 Plaintiff is a Washington resident. 19 corporation and citizens of the State of Georgia. 20 The Plaintiff alleges more than $75,000 in damages. 21 Subject matter jurisdiction is therefore proper in this case. 22 III. COMMERCIAL ELECTRONIC MAIL ACT 23 Under section 1332, the federal district courts have original The The Defendants are a Nevada FAC ¶¶ 1.1-1.5. FAC ¶ 2.5. Under Washington's Commercial Electronic Mail Act ("CEMA"), it is 24 illegal to transmit email that misrepresents its point of origin, 25 misrepresents its transmission path, or contains false information. 26 Wash. Rev. Code § 19.190.020. The statute authorizes an individual ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 4 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 who receives emails that violate CEMA to bring an action to recover 2 damages. 3 services injured by such emails may also recover damages. 4 Code § 19.190.040(2). 5 6 7 Wash. Rev. Code § 19.190.040(1). Interactive computer Wash. Rev. An "interactive computer service" is, any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions. 8 Wash. Rev. Code § 19.190.010(8). The statute provides separate 9 definitions for “domain name” and "web page." Wash. Rev. Code § 10 19.190.010 (10), (13). CEMA further provides that it is illegal to 11 use email to induce a person to provide identifying information. 12 Wash. Rev. Code § 19.190.080. Private individuals may bring civil 13 actions for damages for violations of this subchapter. Wash. Rev. 14 Code § 19.190.090(1). The owner of a web page who has been “adversely 15 affected” by a violation of Section 19.190.80 may also bring suit. 16 Wash. Rev. Code § 19.190.090(2). 17 The Defendants argue that Gordon, as an individual bringing suit 18 on behalf of himself, does not have standing to pursue his CEMA claim 19 because he does not qualify as an "interactive computer service." The 20 Plaintiff responds that Gordon qualifies as an interactive computer 21 service because he makes information available to thousands of 22 computer users on his website. The Court does not find either party's 23 briefing on this issue persuasive. The parties have neither cited 24 case law nor defined the technical terms at issue in the definition. 25 If the interpretation of the term "interactive computer service" 26 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 5 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 presents a question of first impression, analysis beyond recitation of 2 the statutory language will be necessary. Moreover, even if the Plaintiff does not qualify as an 3 4 interactive computer service, he may still seek recovery under Section 5 19.190.020 for those emails he received personally. 6 recovery for the injuries he suffered personally and the adverse 7 effects the Defendants’ conduct had on him as a provider of internet 8 access service under Section 19.190.080. 9 CEMA claim is therefore denied. 10 11 12 13 14 15 IV. He may also seek Dismissal of the Plaintiff's CONSUMER PROTECTION ACT In order to state a cause of action under Washington’s Consumer Protection Act (“the CPA”), a plaintiff must allege five elements: (1) an unfair or deceptive act or practice, (2) in trade or commerce, (3) that impacts the public interest, (4) which causes injury to the party in his business or property, and (5) the injury must be causally linked to the unfair or deceptive act. 16 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 17 Wash. 2d 778, 785-86, 719 P.2d 531, 535-37 (Wash. 1986). 18 violates CEMA constitutes “an unfair or deceptive act in trade or 19 commerce” for the purposes of the CPA. 20 Conduct that Wash. Rev. Code § 19.190.100. The Defendants imply that the Plaintiff lacks standing to bring 21 his CPA claims because Gordon does not qualify as an interactive 22 computer service. 23 the Court that the Plaintiff is not an interactive computer service, 24 the Plaintiff may yet be able to prove that the Defendants engaged in 25 an unfair or deceptive trade practice by violating CEMA. 26 the Plaintiff's CPA claim is therefore inappropriate. Given that the Defendants have failed to persuade Dismissal of ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 6 Case 2:04-cv-05125-FVS 1 2 V. Document 482 Filed 05/14/2007 THE CAN-SPAM ACT The Controlling the Assault of Non-Solicited Pornography and 3 Marketing Act (“CAN-SPAM”) attempts to decrease the problems 4 associated with commercial electronic mail by prohibiting a number of 5 emailing practices. 6 generally enforced by the Federal Trade Commission, providers of 7 “internet access service” may also seek relief under CAN-SPAM. 8 U.S.C. § 7706(g)(1). 9 service’ has the meaning given that term in section 231(e)(4) of the 15 U.S.C. § 7701 et seq. While CAN-SPAM is For the purposes of CAN-SPAM, “‘Internet access 10 Communications Act of 1934.” 11 Communications Act defines “internet access service” as 12 13 14 15 15 U.S.C. § 7702(11). The a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. 15 47 U.S.C. § 231(e)(4). 16 The Defendants argue that the Plaintiff does not have standing to 17 bring claims under CAN-SPAM because Gordon, as an individual bringing 18 suit on behalf of himself, is not an internet access service. The 19 Plaintiff responds that he is an internet access service because, as 20 the sole proprietor of gordonworks.com, he enables the site’s users to 21 access content and email on the Internet. 22 The Court is not persuaded that dismissal of the Plaintiff's CAN23 SPAM claim is appropriate. The parties agree that CAN-SPAM defines 24 “internet access service” in terms of what the entity in question does 25 rather than in terms of the entity's ownership structure. The 26 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 7 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 Plaintiff has made a logical argument that his activities qualify him 2 under this definition. 3 any analysis in support of their argument that an individual who 4 operates a domain name may not qualify as an internet access service. 5 While the Defendants do point to a secondary source that supports 6 their position, the persuasive value of this unbinding authority is 7 negated by the absence of analysis. 8 SPAM claim at this stage of the litigation would be premature. 9 VI. 10 In contrast, the Defendants have not provided Dismissal of the Plaintiff's CAN- THE PRIZE STATUTE Washington’s Prize Statute prohibits the deceptive promotional 11 advertizing of prizes. 12 person who suffers damages” as a result of such advertizing practices 13 may bring a cause of action to recover damages. 14 19.170.060. 15 emails that violated the Prize Statute in unspecified ways. 16 4.3.1-4.3.2. 17 standing to bring his Prize Statute claim because he has failed to 18 plead that the Defendants' alleged violations of the Prize Statute 19 caused him to suffer damages. 20 Plaintiff permission to amend the First Amended Complaint to plead 21 damages under the Prize Statute. 22 denied. 23 VII. PERSONAL JURISDICTION 24 Wash. Rev. Code § 19.170.010 et seq. “A Wash. Rev. Code § The FAC alleges that the Defendants transmitted many FAC ¶¶ The Defendants argue that the Plaintiff does not have However, the Court has granted the The motion to dismiss this claim is A trial court may only exercise personal jurisdiction over an 25 out-of-state defendant when the exercise of jurisdiction is both 26 consistent with due process and authorized by the state’s long arm ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 8 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 statute. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154-55 (9th Cir. 2 2006). 3 number of contacts with the forum state so that the exercise of 4 jurisdiction does not offend traditional notions of fair play and 5 substantial justice. 6 310, 316, 66 S. Ct. 154, 159, 158 90 L. Ed. 2d 95, 102 (1945). 7 defendant has so many contacts with the forum state as to “approximate 8 physical presence,” the courts within that state have general 9 jurisdiction over the defendant and may exercise it on any claim. Due process is satisfied when a defendant has a sufficient International Shoe Co. v. Washington, 326 U.S. When a 10 Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168-69 (9th Cir. 11 2006). 12 forum state, the courts within it may only exercise specific 13 jurisdiction. 14 Where, however, a defendant has only limited contacts with the Pebble Beach Co. v. Caddy, 453 F.3d at 1154 n.1. The Ninth Circuit applies a three-part test in determining 15 whether a defendant has sufficient minimum contacts with the forum 16 state to establish specific jurisdiction. 17 when, 18 19 20 Minimum contacts exist (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. 21 Id. at 1155. 22 The plaintiff in a civil action has the burden of proving that 23 the court has personal jurisdiction over a defendant. Lee v. City of 24 Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). Once the plaintiff 25 has satisfied the first two prongs of the minimum contacts test, the 26 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 9 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 burden shifts to the defendant to prove that the exercise of 2 jurisdiction would be unreasonable. 3 Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 4 evidence, the court should take unchallenged allegations in the 5 complaint as true, conflicts in facts should be resolved in favor of 6 the plaintiff, and the evidence before the court should be construed 7 in the light most favorable to the plaintiff. 8 F.3d at 1187. Schwarzenegger v. Fred Martin In considering the Id. at 800; Ochoa, 287 9 While the Defendants do not contest the court’s jurisdiction over 10 Impulse, they do challenge the court’s jurisdiction over Goldstein and 11 Adamson. 12 Adamson is inappropriate because the Plaintiff has plead facts 13 sufficient to confer personal jurisdiction. 14 that Adamson and Goldstein are officers or directors of Impulse who 15 exercise control over Impulse’s policies and practices. 16 Assuming this allegation to be true, Adamson and Goldstein did 17 purposefully avail themselves of the privilege of conducting 18 activities in Washington. 19 evidence to the contrary, the Court must resolve such factual disputes 20 in favor of the Plaintiff under Ochoa and Schwarzenegger. 21 800; 287 F.3d at1187. 22 VIII. 23 However, dismissal of the claims against Goldstein and The Plaintiff has plead FAC ¶ 1.5. While the Defendants have submitted 374 F.3d at VAGUENESS Under the notice pleading requirements of the Federal Rules of 24 Civil Procedure, a complaint in a civil suit must contain “a short and 25 plain statement of the grounds upon which the court’s jurisdiction 26 depends.” Fed. R. Civ. P. 8(a)(1). “The ‘short and plain statement’ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 10 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 must provide the defendant with ‘fair notice of what the plaintiff's 2 claim is and the grounds upon which it rests.’” 3 Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627, 1634, 161 L. Ed. 2d 577, 4 588 (2005)(citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 5 103, 2 L. Ed. 2d 80, 85 (1957)). 6 plaintiff’s complaint should set forth allegations respecting all 7 material elements of a particular claim. 8 Inc., 369 F. Supp. 2d 1127, 1130 (N.D. Cal. 2005). 9 Dura Pharm., Inc. v. To satisfy this standard, the Brennan v. Concord EFS, A complaint may properly be dismissed when it is “vague, 10 conclusory, and general and does not set forth any material facts in 11 support of the allegations.” 12 Comm'n, 720 F.2d 578, 583 (9th Cir. 1983). 13 dismissal is appropriate when “one cannot determine from the complaint 14 who is being sued, for what relief, and on what theory, with enough 15 detail to guide discovery." 16 2d 1198, 1205 (C.D. Cal. 2004)(quoting McHenry v. Renne, 84 F.3d 1172, 17 1178 (9th Cir. 1996)). North Star Int'l v. Arizona Corp. More specifically, Jacobson v. Schwarzenegger, 357 F. Supp. 18 The Defendants argue that the FAC fails to satisfy the 19 pleading requirements of Rule 8 because it is vague and consists 20 entirely of conclusory allegations. 21 the vague and conclusory nature of the FAC, the FAC does provide the 22 Defendants with “fair notice” of the nature of the Plaintiff’s claims. 23 Unlike the complaint dismissed in Jacobson, one can determine the 24 identity of the defendants, the relief sought, and the theories 25 alleged in the FAC. 26 seeking the emails at issue. While the Court is troubled by It is also possible to proceed with discovery by ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 11 Case 2:04-cv-05125-FVS 1 IX. Document 482 Filed 05/14/2007 MOTION FOR A MORE DEFINITE STATEMENT 2 A defendant may move for a more definite statement when the 3 complaint is "so vague or ambiguous that a party cannot reasonably be 4 required to frame a responsive pleading.” 5 motion for a more definite statement is not a remedy for a lack of 6 detail, however. 7 Or. 2002); Castillo v. Norton, 219 F.R.D. 155, 163 (D. Ariz. 2003). 8 Motions for a more definite statement are disfavored, leading some 9 district courts to conclude that such motions should be denied if the Fed. R. Civ. P. 12(e). A Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D. 10 missing information may be obtained through discovery. 11 F.R.D. at 163; Davison v. Santa Barbara High School District, 48 F. 12 Supp. 2d 1225, 1228 (C.D. Cal. 1998). 13 14 Castillo, 219 The Defendants request an order compelling the Plaintiff to provide, for each and every allegedly offensive email: 15 1) The address to which it was sent; 16 2) The date on which it was sent; 17 3) The basis upon which the Plaintiff claims it violates a 18 19 20 statute; and 4) The basis upon which the Plaintiff claims the Defendant sent it. 21 (Ct. Rec. 404 at 18-19.) The Plaintiff argues that all of the 22 information the Defendants seek has been provided in discovery. 23 The Court finds that the nature of the Plaintiff's claims, 24 combined with the vagueness of the FAC, presents an exceptional 25 circumstance that warrants a more definite statement. 26 provides notice concerning the nature of the Plaintiff's claims, it is While the FAC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 12 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 nevertheless so ambiguous that the Defendants cannot reasonably be 2 expected to frame a responsive pleading. 3 not identify the emails at issue. 4 Defendants have no way of knowing if they should "admit" or "deny" 5 sending the emails. 6 email violates any of the statutes at issue without first knowing the 7 content of the email. 8 9 Specifically, the FAC does Without such identification, the Nor is it possible to "admit" or "deny" that an Even if the Defendants have been provided with the emails through discovery, a more definite statement is necessary to prevent the 10 Plaintiff from presenting a moving target. While not all of the 11 information requested by the Defendants is necessary to achieve this 12 end, the Plaintiff must identify the emails at issue, the time frame 13 during which they were sent, and the basis upon which he claims the 14 Defendants sent the emails. 15 first identifying the acts and documents that gave rise to the claim 16 is contrary to the "just, speedy, and inexpensive determination of the 17 action" required by Federal Rule of Civil Procedure 1. Attempting to litigate a claim without 18 CONCLUSION 19 Following this Court's disposition of the Defendant's Second 20 Motion to Dismiss, the Plaintiff may continue to pursue his claims 21 under Washington's Commercial Electronic Mail Act, Washington's 22 Consumer Protection Act, Washington’s Deceptive Offers statute, 23 Washington’s Identity Crimes statute, Washington's Prize Statute, and 24 the federal Controlling the Assault of Non-Solicited Pornography and 25 Marketing Act. 26 definite statement as specified below. The Plaintiff must provide the Defendant with a more Accordingly, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 13 Case 2:04-cv-05125-FVS Document 482 Filed 05/14/2007 1 IT IS HEREBY ORDERED: 2 1. The Defendants’ Motion to Dismiss the First Amended Complaint, 3 4 5 Ct. Rec. 403, is GRANTED IN PART and DENIED IN PART. 2. The Plaintiff shall file a more definite statement identifying: 6 a) The number of emails at issue; 7 b) The time frame during which the emails were sent; c) The addresses and domain names that received the emails; 8 and 9 10 d) A brief summary of the factual basis upon which the Plaintiff claims that Impulse sent the emails. 11 IT IS SO ORDERED. 12 13 The District Court Executive is hereby directed to enter this order and furnish copies to counsel. DATED this 14th day of May, 2007. 14 15 s/ Fred Van Sickle Fred Van Sickle United States District Judge 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS- 14

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