John Muldoon v. DePuy Orthopaedics, Inc. et al

Filing 74

Order by Judge Phyllis J. Hamilton granting 48 John Muirs Motion to Dismiss.(pjhlc2, COURT STAFF) (Filed on 4/29/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN MULDOON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-02723-PJH
ORDER GRANTING JOHN MUIR’S
MOTION TO DISMISS

v.
DEPUY ORTHOPAEDICS, INC., et al.,

Re: Dkt. No. 48

Defendants.

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Before the court is defendant John Muir Health’s (“John Muir”) motion to dismiss

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and strike. Dkt. 48. The matter is fully briefed and suitable for decision without oral

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argument. Having read the parties’ papers and carefully considered their arguments and

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the relevant legal authority, and good cause appearing, the court hereby rules as follows.

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BACKGROUND

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This action was filed by plaintiff John Muldoon on June 17, 2015. Dkt. 1. The

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operative Second Amended Complaint (“SAC”, Dkt. 42) alleges eighteen (18) causes of

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action against numerous defendants, all related to damages plaintiff alleges he suffered

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from his hip-replacement surgery conducted in 2007. The named defendants are

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Dr. David Dodgin, M.D. (the surgeon who performed the hip implant procedure in 2007),

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John Muir Health (the facility at which the 2007 procedure was performed), and

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defendants responsible for producing and/or manufacturing the hip components that were

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used: DePuy, Inc., Johnson & Johnson International, Inc., Johnson & Johnson Services,

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Inc., and Johnson & Johnson and Medical Device Business Services, Inc. f/k/a DePuy

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Orthopaedics, Inc. (together, “DePuy” or the “DePuy defendants”).

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On January 19, 2024, defendant John Muir filed the instant motion to dismiss all

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claims alleged against it. Dkt. 48. On February 8, plaintiff opposed the motion. Opp.,

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Dkt. 60. On February 15, John Muir filed its reply. Dkt. 61.
The SAC alleges the following causes of action: (1) negligence against DePuy

United States District Court
Northern District of California

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defendants; (2) strict product liability, manufacturing defect against DePuy defendants;

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(3) strict product liability, design defect against DePuy defendants; (4) strict product

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liability, failure to warn against DePuy defendants; (5) strict product liability, failure to test

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against DePuy defendants; (6) strict product liability, breach of express warranty against

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DePuy defendants; (7) strict product liability, breach of implied warranty against DePuy

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defendants; (8) fraud, intentional misrepresentation against DePuy defendants;

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(9) negligent misrepresentation against DePuy defendants; (10) false advertising against

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DePuy defendants; (11) violation of consumer legal remedies act against DePuy

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defendants; (12) violation of unfair competition law against DePuy defendants; (13) civil

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RICO against all defendants; (14) negligence, medical malpractice against Dodgin and

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John Muir; (15) negligent supervision against John Muir; (16) medical malpractice, lack of

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informed consent against Dodgin and John Muir; (17) breach of fiduciary duty against

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Dodgin and John Muir; and (18) battery against Dodgin and John Muir.
John Muir moves to dismiss Claims 13–18, which constitute all claims alleged

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against it.

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A.

Procedural Background
On June 17, 2015, plaintiff brought this case as a class action. With motions to

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dismiss pending by Dodgin and John Muir, the lawsuit was removed to the Multi-District

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Litigation (MDL) in Texas and stayed. Dkt. 21. The case was remanded back to this

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court in January 2023. Dkt. 26. Plaintiff filed the SAC on July 14, 2023, eliminating the

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class action allegations. Dkt. 42.

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B.

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Factual Background
When considering this motion to dismiss, the court recounts facts as alleged in the

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operative complaint. John Muldoon presented to John Muir Medical Center, Concord

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Campus on January 3, 2007 to undergo a left total hip arthroplasty performed by Dodgin.
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SAC ¶¶ 17–18. During the surgery, Dodgin implanted a prosthetic medical device

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system which contained a ceramic-on-metal bearing surface consisting of components

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manufactured by DePuy. Id. ¶ 19.
At some point after plaintiff’s January 2007 surgery, but unbeknownst to him,

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friction and wear between the ceramic head and cobalt-chromium metal liner began to

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cause toxic cobalt-chromium metal ions and particles to be released into his body,

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causing him various injuries. Id. ¶ 21.
In August of 2014, Muldoon was evaluated by Louay Toma, M.D. for complaints

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United States District Court
Northern District of California

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related to his hip. Toma recommended and reviewed an MRI of the left hip and

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recommended revision surgery to remove the implanted ceramic-on-metal bearing

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surface. Id. ¶ 23. On October 15, 2014, Toma performed a revision surgery on plaintiff

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and replaced the ceramic-on-metal device with a ceramic-on-plastic one. Id. ¶ 25.
Plaintiff contends that the original ceramic-on-metal implant caused him injuries

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and that the DePuy defendants knew it was likely that the hip implant would fail early

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necessitating revision surgeries. Plaintiff also alleges DePuy entered into relationships

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with orthopedic surgeons, such as Dodgin, to incentivize surgeons to use their hip

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implants while concealing the risk of early failure of the device.
DISCUSSION

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A.

Legal Standard
“Federal courts are courts of limited jurisdiction. They possess only that power

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authorized by Constitution and statute, which is not to be expanded by judicial decree. It

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is to be presumed that a cause lies outside this limited jurisdiction, and the burden of

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establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). The court is

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under a continuing obligation to ensure that it has subject matter jurisdiction (see Fed. R.

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Civ. P. 12(h)(3)), and a defendant may raise the defense of lack of subject matter

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jurisdiction by motion pursuant to Federal Rule of Civil Procedure 12(b)(1).

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B.

Analysis
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against it. The parties agree that there is not complete diversity, so that diversity is no

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basis for jurisdiction. The parties dispute whether the court has jurisdiction based on a

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federal question, namely plaintiff’s Racketeer Influenced and Corrupt Organizations Act,

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18 U.S.C. §§ 1961–68 (“RICO”) claim. If the RICO claim as alleged against John Muir is

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dismissed, the parties agree that the court would lack jurisdiction to adjudicate the

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remaining claims against John Muir. See Opp. at 23.

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United States District Court
Northern District of California

John Muir argues that this court does not have jurisdiction over the claims alleged

As the parties agree that the viability of plaintiff’s RICO claim as alleged against
John Muir is essential for this court to retain jurisdiction over plaintiff’s other claims
against John Muir, the court first addresses that issue.
RICO’s Statutory Standing Requirement

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1.

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Defendant argues that RICO claims may not be brought for redress for personal

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injuries, but instead require injury to business or property. This argument is sometimes

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referred to as RICO’s “statutory standing” requirement. Plaintiff declined to address this

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argument in his opposition.

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a.

Legal Standard

Under RICO, “[a]ny person injured in his business or property by reason of a

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violation of section 1962 of this chapter may sue therefor in any appropriate United

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States district court”. 18 U.S.C. § 1964(c) (emphasis added).

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“[T]o establish statutory standing pursuant to RICO, a plaintiff must show . . . that

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his alleged harm qualifies as injury to his business or property”. Shulman v. Kaplan, 58

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F.4th 404, 410 (9th Cir. 2023) (internal quotation marks omitted). “Without a harm to a

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specific business or property interest—a categorical inquiry typically determined by

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reference to state law—there is no injury to business or property within the meaning of

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RICO.” Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc); Glob. Master Int'l

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Grp., Inc. v. Esmond Nat., Inc., 76 F.4th 1266, 1274 (9th Cir. 2023) (“plaintiff must

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demonstrate (1) harm to a specific property interest cognizable under state law, and (2)

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that the injury resulted in ‘concrete financial loss’”) (citation omitted); City of Almaty v.
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Khrapunov, 956 F.3d 1129, 1132 (9th Cir. 2020) (“To state a claim under RICO, a plaintiff

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is required to show harm to a specific business or property interest, an inquiry ‘typically

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determined by reference to state law.’”) (quoting Diaz, 420 F.3d at 900). The injury must

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be alleged based on a property interest recognized under state law. “Financial losses, in

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and of themselves, are insufficient to confer standing under RICO.” Living Designs, Inc.

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v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 364 (9th Cir. 2005); see also Khrapunov,

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956 F.3d at 1132 (“no state law indicating that voluntary expenditures to track down

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stolen property constitutes a separate injury to property”).

United States District Court
Northern District of California

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A plaintiff must also “satisfy the proximate cause inquiry.” That is, it must show

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that the RICO claim’s predicate act “was the actual cause of” the injury to property.

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“Proximate cause requires ‘some direct relation between the injury asserted and the

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injurious conduct alleged.’” Khrapunov, 956 F.3d at 1133 (quoting Holmes v. Secs. Inv'r

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Prot. Corp., 503 U.S. 258, 268 (1992)).

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b.

Analysis

The essential question to determine whether plaintiff alleges statutory standing for

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his RICO claim is what business or property interest recognized under state law was

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injured. John Muir moves to dismiss plaintiff’s RICO claim based on plaintiff’s failure to

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allege this element, and plaintiff entirely fails to respond to the argument. Because he

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fails to address the argument entirely, plaintiff’s opposition points to no such state-based

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property interest identified in the complaint, nor can this court identify any. Plaintiff plainly

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alleges various personal and pecuniary injuries. See, e.g., SAC ¶¶ 80–85. Among them

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are expenses he incurred for surgeries, related costs, and resulting financial losses. Id.

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¶ 83; see also, e.g., id. ¶¶ 84, 93–94, 113–14, 127–28 & 138–39. But the court’s

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unassisted review of the complaint on this question has failed to identify any allegations

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of harm to a specific business or property interest cognizable under state law. See

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Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Judges are

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not like pigs, hunting for truffles buried in briefs.”) (quoting United States v. Dunkel, 927

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F.2d 955, 956 (7th Cir. 1991)).
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United States District Court
Northern District of California

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Moreover, because plaintiff does not address the issue at all in his opposition, he

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concedes that he cannot state a claim under the RICO statute for failure to allege an

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injury to a business or property interest. See Jenkins v. Cnty. of Riverside, 398 F.3d

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1093, 1095 n.4 (9th Cir. 2005) (plaintiff “abandoned . . . two claims by not raising them in

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opposition to the . . . motion for summary judgment”); see also Qureshi v. Countrywide

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Home Loans, Inc., 2010 WL 841669, *6 n.2 (N.D. Cal. Mar. 10, 2010) (dismissing claims

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without leave to amend because plaintiff’s failure to address arguments in its opposition

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brief constituted an “abandonment of those claims”).

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Finally, in addition to failing to address this issue based on the operative

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complaint, plaintiff “has failed to proffer . . . any additional facts he would plead if given

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the opportunity to amend. Accordingly, amendment would be futile.” Stross v. Zillow,

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Inc., No. 22-36000, 2023 WL 8518904, at *2 n.2 (9th Cir. Dec. 8, 2023) (citing Kendall v.

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Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008) (denying leave to amend where

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plaintiffs “fail to state how they would amend the Complaint if given leave”)).
CONCLUSION

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For the foregoing reasons, plaintiff’s RICO claim (Claim 13) as alleged against

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John Muir is DISMISSED WITHOUT LEAVE TO AMEND. As the parties agree that the

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RICO claim constituted the sole basis for this court’s jurisdiction over plaintiff’s remaining

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claims against John Muir, the court declines to exercise jurisdiction over those claims,

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and John Muir is DISMISSED from the action.

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IT IS SO ORDERED.
Dated: April 29, 2024

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/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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