The National Grange of the Order of Patrons of Husbandry v. California State Grange

Filing 23

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 7/30/14 ORDERING that plaintiff's motion to strike defendant's affirmative defenses be, and the same hereby is, GRANTED as to defendant's affirmative defenses of failur e to state a claim, genericness and non-commercial use; and DENIED as to defendant's affirmative defenses of invalidity, acquiescence, waiver, estoppel, and laches, statute of limitations, prior common law use, fair use, lack of secondary meani ng, first sale, unclean hands, and failure to mitigate;plaintiff's motion to strike or dismiss defendant's first counterclaim be, and the same hereby is, DENIED; and plaintiff's motion to dismiss defendant's second, counterclaim be, and the same hereby is, GRANTED. Defendant has twenty days from the date this Order is signed to file an amended Answer and Counterclaims, if defendant can do so consistent with this Order. (Becknal, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo---11
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THE NATIONAL GRANGE OF THE ORDER
OF PATRONS OF HUSBANDRY, a
District of Columbia nonprofit
corporation,

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS OR STRIKE
DEFENDANT’S COUNTERCLAIMS AND
AFFIRMATIVE DEFENSES

Plaintiff,

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v.

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CIV. NO. 2:14-676 WBS DAD

CALIFORNIA STATE GRANGE, a
California corporation,

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Defendant.

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Plaintiff National Grange of the Order of Patrons of
Husbandry brought this action against defendant California State
Grange arising out of defendant’s alleged use of plaintiff’s
trademarks.

Presently before the court is plaintiff’s motion to

dismiss or strike defendant’s counterclaims and affirmative
defenses.
I.

Factual & Procedural Background

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Plaintiff is a national fraternal agricultural
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organization that owns a number of trademarks used for
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associational, educational and advocacy activities.

(Compl. ¶¶

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1-3, 17, 20-21 (Docket No. 1).)

Defendant was an affiliate

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chapter of plaintiff until 2013, when plaintiff purported to
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revoke defendant’s charter and defendant disclaimed any further
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affiliation with plaintiff.

(Id. ¶¶ 31-32, 34; Answer ¶¶ 5, 7-8

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(Docket No. 13).)

Plaintiff alleges that defendant continues to

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use plaintiff’s trademarks despite this apparent divorce.
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(Compl. ¶ 10.)
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Plaintiff filed a Complaint on March 12, 2014, bringing
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claims for: (1) federal trademark infringement under § 32 of the
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Lanham Act, 15 U.S.C. § 1114; (2) unfair competition and false
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designation of origin under § 43(a) of the Lanham Act, 15 U.S.C.
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§ 1125(a); (3) federal trademark dilution under § 43(c) of the
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Lanham Act, 15 U.S.C. § 1125(c); and (4) federal trademark
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counterfeiting under § 32(1) of the Lanham Act, 15 U.S.C. §
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1114(1).
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(Compl. ¶¶ 48-101.)

On May 12, 2014, defendant filed

its Answer, in which it alleged thirteen1 affirmative defenses

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and two counterclaims: (1) declaratory judgment of non21
infringement, and (2) cancellation of plaintiff’s trademark
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registrations on the grounds of abandonment.

(Answer ¶¶ 102-14,

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120-33.)
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Plaintiff now moves to strike defendant’s affirmative
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defenses under Federal Rule of Civil Procedure 12(f); to strike
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1

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Although it numbers the defenses as one through twelve,
defendant’s Answer includes two “eighth” affirmative defenses.
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defendant’s first counterclaim under Rule 12(f) or,
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alternatively, to dismiss it under Rule 12(b)(6) for failure to
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state a claim; and to dismiss defendant’s second counterclaim
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under Rule 12(b)(6).

(Docket No. 14.)

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II.

Analysis

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A.

Affirmative Defenses

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Plaintiff moves to strike each of the thirteen
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affirmative defenses in defendant’s Answer under Rule 12(f),
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which authorizes the court to “strike from a pleading an
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insufficient defense or any redundant, immaterial, impertinent,
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or scandalous matter.”

Fed. R. Civ. P. 12(f).

“The function of

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a 12(f) motion to strike is to avoid the expenditure of time and
13
money that must arise from litigating spurious issues by
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dispensing with those issues prior to trial . . . .”

Fantasy,

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Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation
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marks, citation, and first alteration omitted), rev’d on other
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grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
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An affirmative defense is legally insufficient only
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where “there are no questions of fact,” “any questions of law are
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clear and not in dispute,” and “under no set of circumstances
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could the defense succeed.”

Ramirez v. Ghilotti Bros., 941 F.

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Supp. 2d 1197, 1204 (N.D. Cal. 2013) (citation omitted).

An

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affirmative defense is insufficiently pled if it fails to give
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the plaintiff fair notice of the defense.
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Wyshak v. City Nat’l

Bank, 607 F.2d 824, 827 (9th Cir. 1979).2

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2

The court acknowledges the disagreement among district
courts in the Ninth Circuit--including between different judges
within this district--over whether affirmative defenses must meet
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Because motions to strike are “often used as delaying
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tactics,” they are “generally disfavored” and are rarely granted
3
in the absence of prejudice to the moving party.

Rosales v.

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Citibank, FSB, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001); see
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also N.Y.C. Emps.’ Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128
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(N.D. Cal. 2009) (“Where the moving party cannot adequately
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demonstrate . . . prejudice, courts frequently deny motions to
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strike even though the offending matter was literally within one
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or more of the categories set forth in Rule 12(f).” (citation and
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internal quotation marks omitted)).

Courts may find prejudice

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“where superfluous pleadings may confuse the jury, or where a
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party may be required to engage in burdensome discovery around
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frivolous matters.”

J & J Sports Prods., Inc. v. Luhn, Civ. No.

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2:10-3229 JAM, 2011 WL 5040709, at *1 (E.D. Cal. Oct. 24, 2011)
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(citations omitted).
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1.

Failure to State a Claim

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Defendant concedes that its first affirmative defense,
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that the Complaint fails to state a claim on which relief can be
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granted, is not actually an affirmative defense.

“A defense

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which demonstrates that plaintiff has not met its burden of proof
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is not an affirmative defense.”

Zivkovic v. S. California Edison

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Co., 302 F.3d 1080, 1088 (9th Cir. 2002); see also Dodson v.
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Munirs Co., Civ. No. S-13-0399 LKK, 2013 WL 3146818, at *8 (E.D.
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Cal. June 18, 2013) (striking affirmative defense alleging
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the plausibility pleading standard of Bell Atlantic Corporation
v. Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). The court need not reach this question here, as any
affirmative defenses that are insufficiently pled would fail to
satisfy either standard.
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failure to state a claim because it “address[es] elements of
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plaintiff’s prima facie case” and is “properly addressed through
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denial or an appropriate motion.)

Accordingly, the court will

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grant plaintiff’s motion to strike this affirmative defense with
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prejudice.
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2.

Invalidity

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Defendant’s second affirmative defense alleges that
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plaintiff’s trademarks are invalid because plaintiff “has
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abandoned the alleged trademarks by failing to police and
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exercise adequate quality control over the goods or services sold
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or provided by one or more licensees or third parties, or
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otherwise does not have valid United State trademark rights in
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the alleged marks.”

(Answer ¶ 103.)

Although a plaintiff must

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establish the validity of its trademark as an element of its
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claim, courts have recognized that invalidity “is effectively an
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affirmative defense to claims of infringement, unfair source
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designation and other allegations of unfair competition.”
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Computerland Corp. v. Microland Computer Corp., 586 F. Supp. 22,
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24 (N.D. Cal. 1984).
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By alleging invalidity as an affirmative defense,
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defendant has arguably assumed the burden of proof on one element
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of plaintiff’s claim; thus, the court cannot see how allowing
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defendant to proceed with this defense would prejudice plaintiff
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in any way.

The court may deny plaintiff’s motion to strike

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without prejudice, even if plaintiff is correct that the defense
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is insufficiently pled.

See N.Y.C. Emps.’ Ret. Sys., 667 F.Supp.

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2d at 1128.

Accordingly, the court will deny plaintiff’s motion

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to strike this defense.
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3.

Acquiescence; Waiver, Estoppel, and Laches;

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Statute of Limitations; Failure to Mitigate
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These affirmative defenses raise related issues arising
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from defendant’s allegations that defendant has used plaintiff’s
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marks with plaintiff’s consent for over 100 years.

(See, e.g.,

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Answer ¶¶ 104, 105.)

In other sections of its Answer, defendant

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also alleges that it used some of the marks exclusively and prior
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to the first use and registration of the marks by plaintiff.
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(See, e.g., id. ¶¶ 108, 123.)
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In moving to strike these defenses, plaintiff disputes
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defendant’s characterization of the relationship between the two
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parties based on facts alleged in its Complaint, and argues that
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the termination of the affiliate relationship between the parties
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eliminated any of defendant’s rights to the marks.

However,

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those facts are extraneous to the pleading being challenged here17
-defendant’s Answer.

Instead, the court must view the Answer in

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the light most favorable to the pleader.

See, e.g., Stearns v.

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Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1139 (N.D.
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Cal. 2010) (“The grounds for a motion to strike must appear on
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the face of the [pleading] . . . and the court must view the
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pleading in the light most favorable to the pleader.”).
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Taken as a whole, defendant’s pleadings contain
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sufficient facts for the court to infer that defendant’s alleged
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longstanding use of the marks plausibly supports these defenses.
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Thus, even under the stricter pleading standard of Iqbal and
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Twombly, these defenses are sufficiently pled.
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See Twombly, 550

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U.S. at 570 (requiring that a party plead “only enough facts to
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state a claim to relief that is plausible on its face.”).
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Moreover, as a matter of law, the court cannot say that any of
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these defenses are so spurious that “under no set of
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circumstances could the defense succeed.”

Ramirez, 941 F. Supp.

6
2d at 1204 (describing standard for legal insufficiency of
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affirmative defense).

Accordingly, because defendant’s defenses

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of acquiescence; waiver, estoppel, and laches; statute of
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limitations; and failure to mitigate each have sufficient bases
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in fact and law, the court will deny plaintiff’s motion to strike
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these defenses.
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4.

Genericness

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Generic terms “are those that refer to ‘the genus of
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which the particular product or service is a species,’ i.e., the
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name of the product or service itself.”

Advertise.com, Inc. v.

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AOL Adver., Inc., 616 F.3d 974, 977 (9th Cir. 2010) (quoting
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Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns Inc., 198
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F.3d 1143, 1146 (9th Cir. 1999)).

“Generic terms cannot be valid

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marks subject to trademark protection.”

Id.

Courts allow

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defendants to raise the question of whether marks are generic as
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an affirmative defense.

Filipino Yellow Pages, 198 F.3d at 1146.

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Here, defendant alleges that “Plaintiff’s claims are
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barred . . . because Plaintiff’s marks are, have been, or have
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become generic terms that the relevant purchasing public
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understands as primarily the common or class name for the goods
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or services asserted to be associated with the marks asserted by
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Plaintiff.”

(Answer ¶ 107.)

This conclusory allegation fails to

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provide plaintiff with even fair notice of the defense, as it
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does not identify which marks have become generic or with which
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goods and services the public has associated these marks.

See

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Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (C.D.
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Cal. 2004) (finding that affirmative defense that started legal
6
conclusion without supporting facts was insufficient to give
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plaintiff fair notice of the basis of the defense).
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Although the court is not required to assume any of
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plaintiff’s allegations regarding its use of the marks as true,
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defendant provides no contrary facts to support this defense as
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currently alleged.

In light of such conclusory pleading,

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plaintiff’s defense of genericness is insufficiently pled, and
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the court must grant plaintiff’s motion to strike the defense
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without prejudice.
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5.

Prior Common Law Rights

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A challenger to a federally registered trademark “may
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rebut the presumption of ownership with evidence establishing its
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own prior use in commerce of the registered mark.”

Dep’t of

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Parks & Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124
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(9th Cir. 2006).

In its seventh affirmative defense, defendant

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alleges that it has continually used the marks in commerce in
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California since 1873, prior to plaintiff’s alleged first use and
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registration of the marks.

(Answer ¶ 108.)

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In response, plaintiff argues that its use predates
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that of defendant and that any rights defendant had in the marks
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extinguished when defendant merged with plaintiff’s organization,
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as in U.S. Jaycees v. S.F. Junior Chamber of Commerce, 354 F.
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8

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Supp 61 (N.D. Cal. 1972).

But the court is not required to take

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plaintiff’s version of the facts as true, and there is no
3
evidence at this early stage of the litigation from which the
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court can determine that the two parties merged in the same
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manner as the organizations in U.S. Jaycees.

It is particularly

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telling that U.S. Jaycees was decided at the summary judgment
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stage after the court made a number of factual findings and
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conclusions of law; here, however, the factual record is not so
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clear.
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The court thus cannot conclude that “there are no
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questions of fact” and that “under no set of circumstances could”
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defendant rebut plaintiff’s presumption of ownership with
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evidence establishing defendant’s own prior use in commerce of
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the registered marks.

Ramirez, 941 F. Supp. 2d at 1204.

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Accordingly, the court must deny plaintiff’s motion to strike
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defendant’s prior common law rights defense.
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6.

Fair Use

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Nominative fair use is a defense to infringement where
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the use merely identifies the trademarked item in a manner that
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does not confuse consumers.

See Toyota Motor Sales, U.S.A., Inc.

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v. Tabari, 610 F.3d 1171, 1175 (9th Cir. 2010) (considering
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defense regarding automobile brokers’ use of Lexus trademark).
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Here, defendant alleges that plaintiff’s claims are barred “in
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whole or in part . . . to the extent that Defendant’s use of any
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of the trademarks asserted by Plaintiff is fair and in good faith
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to describe, name, or identify Plaintiff or Plaintiff’s own
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product or service.”

(Answer ¶ 109.)

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9

Although the court agrees

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with plaintiff that the primary issue in this case revolves
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around defendant’s use of the marks to identify itself rather
3
than plaintiff, it appears undisputed that any use of the marks
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simply to identify plaintiff would qualify as fair use.
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Accordingly, because the court cannot say “under no set of
6
circumstances could the defense succeed,” Ramirez, 941 F. Supp.
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2d at 1204, the court will deny plaintiff’s motion to strike
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defendant’s fair use defense.
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7.

Lack of Secondary Meaning

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A plaintiff in an infringement action must prove that
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its mark is distinctive.

Kendall–Jackson Winery v. E. & J. Gallo

12
Winery, 150 F.3d 1042, 1046–47 (9th Cir. 1998).

It may satisfy

13
this burden by showing that the mark has acquired a secondary
14
meaning.

Wal–Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S.

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205, 216 (2000).

However, some courts have recognized lack of

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secondary meaning as a proper affirmative defense rather than
17
denial of an element of the plaintiff’s prima facie case.

See

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Desert European Motorcars, Ltd. v. Desert European Motorcars,
19
Inc., No. EDCV 11-197 RSWL (DTBx), 2011 WL 3809933, at *9 (C.D.
20
Cal. Aug. 25, 2011).
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As with plaintiff’s invalidity affirmative defense,
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plaintiff does not demonstrate how shifting the burden of proof
23
on an element of plaintiff’s case to defendant causes plaintiff
24
to suffer any prejudice.

There is no indication that allowing

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defendant to proceed with this defense would “confuse the jury”
26
or require the parties “to engage in burdensome discovery around
27
frivolous matters.”

Luhn, 2011 WL 5040709, at *1.

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10

Accordingly,

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because the court may deny motions to strike absent a showing of
2
prejudice, the court will deny plaintiff’s motion to strike
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defendant’s lack of secondary meaning defense.
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8.

Non-Commercial Use

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Defendant next alleges that “Plaintiff’s claims are
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barred in whole or in part to the extent that California State
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Grange’s use of any of the alleged marks is non-commercial and
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thus protected under the First Amendment to the United States
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Constitution.”

(Answer ¶ 111.)

This conclusory assertion does

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not find any factual support in defendant’s Answer, or even
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defendant’s briefs.

It is not even clear in what sense the

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defendant uses the term “non-commercial,” e.g., not for profit or
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not in interstate commerce.

Instead, defendant argues that it

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may plead inconsistent facts and defenses.

This may be true, but

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it does not address the lack of any factual allegations to
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support this defense.

Accordingly, because such barebones

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pleadings do not even provide fair notice to plaintiff of the
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extent of defendant’s alleged non-commercial uses, the court must
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grant plaintiff’s motion to strike this defense without
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prejudice.
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9.

First Sale Doctrine

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The first sale doctrine holds that “the right of a
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producer to control distribution of its trademarked product does
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not extend beyond the first sale of the product,” and thus
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“[r]esale by the first purchaser of the original article under
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the producer’s trademark is neither trademark infringement nor
27
unfair competition.”

Sebastian Int’l, Inc. v. Longs Drug Stores

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11

1
Corp., 53 F.3d 1073, 1074 (9th Cir. 1995).

Here, defendant

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alleges that plaintiff’s claims are barred “to the extent that
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[defendant’s] use of any of the alleged marks or sale of goods
4
bearing any of the marks is a mere resale of Plaintiff’s
5
products, whether procured from Plaintiff or on the open market.”
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(Answer ¶ 112.)
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Plaintiff challenges the legal sufficiency of this
8
defense, arguing that the dissolution of the affiliate
9
relationship between plaintiff and defendant bars defendant from
10
alleging first sale.

Plaintiff presents no legal authority for

11
this contention, as the case law it provides makes no mention of
12
the first sale doctrine.

See U.S. Jaycees, 354 F. Supp. at 63.

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Moreover, as the court has already described, disputed issues of
14
fact remain as to the relationship between the two entities.

The

15
court thus cannot conclude so early in the litigation that this
16
defense is foreclosed to defendant and that “under no set of
17
circumstances could” defendant prove that at least some of its
18
use of the marks was a mere resale of plaintiff’s products.
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Ramirez, 941 F. Supp. 2d at 1204.

Accordingly, the court will

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deny plaintiff’s motion to strike defendant’s first sale defense.
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10.

Unclean Hands

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Finally, defendant alleges that plaintiff has unclean
23
hands “by attempting to enforce its alleged trademark rights
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beyond a reasonable interpretation of the scope of the rights
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legitimately granted to a trademark owner.”

(Answer ¶ 113.)

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This defense begs the question to be determined by this
27
litigation, i.e. the scope of plaintiff’s trademark rights, and,
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12

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as plaintiff admits, the “issue will be decided based on the
2
Complaint and Answer.”

(Pl.’s Reply at 9:19 (Docket No. 21).)

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Accordingly, because this defense will not prejudice defendant,
4
the court will deny plaintiff’s motion to strike defendant’s
5
unclean hands defense.
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B.

First Counterclaim

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Plaintiff additionally moves to strike or,
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alternatively, dismiss, defendant’s first counterclaim for
9
declaratory relief on the grounds that the counterclaim is
10
redundant.

Under the Declaratory Judgment Act, a court “may

11
declare the rights and other legal relations of any interested
12
party.”

28 U.S.C. § 2201(a) (emphasis added).

This provision

13
“has long been understood ‘to confer on federal courts unique and
14
substantial discretion in deciding whether the declare the rights
15
of litigants.’”

MedImmune, Inc. v. Genentech, Inc., 549 U.S.

16
118, 136 (2007) (quoting Wilton v. Seven Falls Co., 515 U.S. 277,
17
286 (1995)).

Plaintiff argues that the court should exercise its

18
discretion to strike or dismiss defendant’s counterclaim for
19
declaratory relief because it raises issues identical to those
20
raised in the Complaint.
21
“A dismissal of counterclaims [for declaratory relief]
22
as redundant is not warranted simply because they concern the
23
same subject matter or arise from the same transaction as the
24
complaint.”

City of Lindsay v. Sociedad Quimica y Minera de

25
Chile S.A., Civ. No. 11-46 LJO SMS, 2011 WL 2516159, at *3 (E.D.
26
Cal. June 21, 2011) (citation omitted).

A court should consider

27
whether the counterclaims “serve any useful purpose,” and should
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13

1
strike a counterclaim “only when it is clear that there is a
2
complete identity of factual and legal issues between the
3
complaint and the counterclaim.”

Id. (citation and quotation

4
marks omitted).
5
Here, defendant’s counterclaim seeks a declaration that
6
its use of “Grange,” “State Grange,” “The National Grange,” and
7
“California State Grange” does not (1) infringe plaintiff’s
8
claimed trademarks “or any common law rights it might have
9
accrued through its use of those marks;” (2) violate § 32 of the
10
Lanham Act; (3) violate § 43(a) of the Lanham Act; violate §
11
43(c) of the Lanham Act; or (4) “violate any other federal, state
12
or common law.”

(Answer ¶ 125.)

Although these claims

13
substantially mirror plaintiff’s, defendant’s references to “any
14
common law rights” and “any other federal, state or common law”
15
take the counterclaim beyond the specific scope of plaintiff’s
16
pleadings.

Thus, it is not “clear that there is a complete

17
identity of factual and legal issues between the complaint and
18
the counterclaim,” and the counterclaim may still “serve [a]
19
useful purpose.”

City of Lindsay, 2011 WL 2516159, at *3.

20
As a leading treatise explains, plaintiff’s contention
21
that the counterclaim should be dismissed or stricken “ignores
22
the possibility that it is very difficult to determine whether
23
the declaratory-judgment counterclaim really is redundant prior
24
to trial.”

6 Arthur R. Miller & Mary Kane, Fed. Prac. & Proc. §

25
1406 (3d ed.).

Accordingly, “the safer course for the court to

26
follow is to deny a request to dismiss a counterclaim for
27
declaratory relief unless there is no doubt that it will be
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14

1
rendered moot by the adjudication of the main action.”

Id.

The

2
court will therefore decline to exercise its discretion to
3
dismiss or strike defendant’s counterclaim for declaratory relief
4
at this time.
5
C.

Second Counterclaim

6
Plaintiff also moves to dismiss defendant’s second
7
counterclaim under Rule 12(b)(6) for failure to state a claim.
8
On a motion to dismiss, the court must accept the allegations in
9
the pleading as true and draw all reasonable inferences in favor
10
of the non-moving party.

Scheuer v. Rhodes, 416 U.S. 232, 236

11
(1974), overruled on other grounds by Davis v. Scherer, 468 U.S.
12
183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).
13
Defendant’s second counterclaim alleges that plaintiff
14
abandoned its trademarks through naked licensing.

A trademark

15
owner engages in naked licensing when it grants a license but
16
“fails to exercise adequate quality control over the licensee,”
17
which results “in the trademark ceasing to function as a symbol
18
of quality and controlled source.”

Barcamerica Int’l USA Trust

19
v. Tyfield Imps., Inc., 289 F.3d 589, 596 (9th Cir. 2002)
20
(citation and quotation marks omitted).

Such a failure

21
“constitutes abandonment of any rights to the trademark by the
22
licensor,” in which case the court may estop the owner from
23
asserting those rights.

Id. at 596, 598.

24
To support this claim, defendant merely alleges that,
25
“[o]n information and belief, [plaintiff] has failed to police
26
and exercise adequate quality control over the goods or services
27
sold or provided under each of the Marks by one or more licensees
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15

1
or third parties.”

(Answer ¶ 129.)

Defendant alleges no facts

2
to support this conclusory contention, nor does defendant allege
3
that plaintiff’s failure to exercise quality control over any
4
licensees has resulted “in the trademark ceasing to function as a
5
symbol of quality and controlled source.”

Barcamerica, 289 F.3d

6
at 596.
7
Defendant’s second counterclaim thus offers little
8
beyond “naked assertions devoid of further factual enhancement”
9
and “formulaic recitations of the elements” of the claim.

See

10
Iqbal, 556 U.S. at 678 (citation and quotation marks omitted).
11
Without more, defendant cannot “state a claim to relief that is
12
plausible on its face.”

Twombly, 550 U.S. at 570.

Accordingly,

13
the court must grant plaintiff’s motion to dismiss the
14
counterclaim for failure to state a claim.
15
IT IS THEREFORE ORDERED that:
16
(1) plaintiff’s motion to strike defendant’s
17
affirmative defenses be, and the same hereby is, GRANTED as to
18
defendant’s affirmative defenses of failure to state a claim,
19
genericness and non-commercial use; and DENIED as to defendant’s
20
affirmative defenses of invalidity, acquiescence, waiver,
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estoppel, and laches, statute of limitations, prior common law
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use, fair use, lack of secondary meaning, first sale, unclean
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hands, and failure to mitigate;
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(2) plaintiff’s motion to strike or dismiss defendant’s
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first counterclaim be, and the same hereby is, DENIED; and
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(3) plaintiff’s motion to dismiss defendant’s second,
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counterclaim be, and the same hereby is, GRANTED.
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Defendant has twenty days from the date this Order is
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signed to file an amended Answer and Counterclaims, if defendant
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can do so consistent with this Order.
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Dated:

July 30, 2014

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