Moore, et al v. Town of Erie, Colorado, et al
Filing
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ORDER granting in part and denying in part 8 Motion to Dismiss by Judge Christine M. Arguello on 7/19/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-02497-CMA-MJW
BRITTANY MOORE, a/k/a BRITTANY LANDIS,
KAITLIN ROSE LANDIS,
KIRSTIN RAE LANDIS, and
KAYMEN RENEE LANDIS, Minors,
by and through their next friend, BRITTANY MOORE,
Plaintiffs,
v.
TOWN OF ERIE, COLORADO, and
ERIE POLICE OFFICER JAMIE CHESTER (Badge E-23), in his official
and individual capacities,
Defendants.
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on Defendants’ Motion to Dismiss. (Doc. # 8.)
Plaintiffs Brittany Moore, and minors through Brittany Moore, Kaitlin Rose Landis, Kirstin
Rae Landis, and Kaymen Renee Landis (collectively, “Plaintiffs”) bring this suit against
the Town of Erie and Erie Police Officer Jamie Chester (collectively, “Defendants”)
under Title 42 U.S.C. § 1983 and Colorado state law claims of intentional infliction of
severe emotional distress and willful and wanton negligence. (Doc. # 3.) Jurisdiction
is proper pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 under federal question
jurisdiction. (Id. at 2.)
I. BACKGROUND
On May 10, 2011, at approximately 7:56 p.m., Plaintiff Moore called 911 to report
a threatening phone call she received and requested that an officer come to her
property for her protection. (Doc. # 3, ¶ 20.) Defendant Chester responded to the call,
but initially went to the wrong address. (Id., ¶¶ 21, 24.) Upon realizing his mistake,
Defendant Chester proceeded to Plaintiff Moore’s residence, which was next door.
(Id., ¶ 24.) At the time Defendant Chester arrived at the wrong address, Plaintiff Moore
was standing on her front porch. (Id., ¶ 25.) Plaintiff Moore’s two dogs, one of which
was a five-year-old German Shepherd named “Ava,” approached Defendant Chester as
he walked towards Plaintiffs’ property. (Id., ¶ 33.) Upon seeing the dogs approaching
him, Defendant Chester began to walk backward with his hand on his holstered gun.
(Id., ¶ 35.) The dogs continued to approach Defendant Chester, who drew his gun
and shot and killed Ava. (Id., ¶ 51.)
On September 19, 2012, Plaintiffs filed a Complaint and Jury Demand alleging
four claims for relief. (Doc. # 3.) First, Plaintiffs assert that Defendant Chester violated
their Fourth Amendment right by shooting and killing Ava without any reasonable
justification. (Id., ¶ 90.) Second, Plaintiffs claim that the Town of Erie and its Police
Department failed to instruct, supervise, control, equip, train, or discipline police officers
in their duties to refrain from unlawfully killing dogs. (Id., ¶ 102.) Third, Plaintiffs allege
intentional infliction of severe emotional distress against Defendant Chester for shooting
and killing Ava. (Id., ¶ 120.) Lastly, Plaintiffs assert willful and wanton negligence
against Defendant Chester for shooting and killing Ava. (Id., ¶ 123.) Defendants filed
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a Motion to Dismiss on September 12, 2012 (Doc. # 8), Plaintiffs filed a response on
October 18, 2012 (Doc. # 10), and Defendants replied on November 11, 2012 (Doc.
# 11).
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) tests
the formal sufficiency of a complaint. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201
(10th Cir. 2003). A complaint will survive such a motion if it contains “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
554, 570 (2007). For a motion to dismiss, “[t]he question is whether, if the allegations
are true, it is plausible and not merely possible that the plaintiff is entitled to relief under
the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192
(10th Cir. 2009). “The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most favorable
to the plaintiff.” Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless,
a complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is
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legally sufficient to state a claim for which a relief may be granted.” Miller v. Glanz, 948
F.2d 1562, 1565 (10th Cir. 1991).
III. DISCUSSION
In their motion to dismiss, Defendants assert that Plaintiffs fail to state a claim
upon which relief may be granted on each of their four claims. (Doc. # 8 at 1.) The
Court will address each claim in turn.
A.
FOURTH AMENDMENT VIOLATION CLAIM AGAINST DEFENDANT
CHESTER
Title 42 U.S.C. § 1983 provides a civil cause of action for individuals who are
deprived of “any rights, privileges, or immunities secured by the Constitution and laws”
by a person acting “under color of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144,
147, 150 (1970). Defendant Chester first contends that Plaintiffs failed to state a claim
under which relief may be granted because he did not violate a constitutional right.
(Doc. # 8 at 3.)
1. Are Dogs “Effects” Within the Meaning of the Fourth Amendment?
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend.
IV. The Supreme Court “has treated the term ‘effects’ as being synonymous with
personal property.” Altman v. City of High Point, 330 F.3d 194, 202 (4th Cir. 2003)
(citing Bond v. United States, 529 U.S. 334, 336–37 (2000); United States v. Jacobsen,
466 U.S. 109, 114 (1984); United States v. Place, 462 U.S. 696, 701 (1983); Nicchia v.
New York, 254 U.S. 228, 230 (1920); Sentell v. New Orleans & C.R. Co., 166 U.S. 698,
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701 (1897) (at common law a dog owner could bring an action of trover for conversion
of a dog)). Although the Tenth Circuit has not addressed this issue, every circuit that
has visited the issue has uniformly concluded that dogs are effects subject to the
protection of the Fourth Amendment. 1 See Carroll v. Cnty. of Monroe, 712 F.3d 649,
649 (2d Cir. 2013) (unreasonable killing of a companion animal constitutes an
unconstitutional seizure of personal property under the Fourth Amendment); Maldonado
v. Fontanes, 568 F.3d 263, 271 (5th Cir. 2009) (“The killing of a person’s pet dog or cat
by the government without the person’s consent is also a seizure within the meaning of
the Fourth Amendment.”); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (dogs are
effects and the killing of a companion dog constitutes a seizure); Altman v. City of High
Point, 330 F.3d 194, 203 (4th Cir. 2003) (“[W]e hold that the plaintiffs’ privately owned
dogs were ‘effects’ subject to the protection of the Fourth Amendment.”); Brown v.
Muhlenberg Twp., 269 F.3d 205, 210 (3rd Cir. 2001) (killing of a person’s dog by a law
enforcement officer constitutes a seizure); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994)
(“A dog is an ‘effect’ or ‘property’ which can be seized.”) overruled on other grounds by
Robinson v. Solano Cnty., 278 F.3d 1007 (9th Cir. 2002); Lesher v. Reed, 12 F.3d 148,
150–51 (8th Cir. 1994) (dogs are property subject to Fourth Amendment seizure
requirements); see also Scharfeld v. Richardson, 133 F.2d 340, 341 (D.C. Cir. 1942)
(“It is an established principle of the common law that a dog is personal property.”).
Indeed, in Colorado, dogs enjoy the status of qualified property. Thiele v. City and Cnty.
1
Similarly, Senior Judge Matsch, of this District has found that an officer’s killing of a plaintiffs’ dog
constituted a “loss of property” under the Fourth Amendment. (Case No. 10-cv-01895-RPM, Doc. ## 52,
53 at 1–2.)
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of Denver, 312 F.2d 786, 789 (Colo. 1957); see further Colorado Dog Fanciers, Inc. v.
City and Cnty. of Denver By & Through City Council, 820 P.2d 644, 653 (Colo. 1991)
(dogs are property and their taking is subject to the police power of the state); Colo.
Rev. Stat. § 25–4–601 (defining an “owner” as “any person who has a right of property
in a dog, cat, [or] other pet animal.”) Therefore, this Court concludes that “Ava” was
an effect as that term was used in the Fourth Amendment.
2. Does the Killing of a Dog Constitute a “Seizure” under the Fourth
Amendment?
Having found that Ava was an “effect” subject to the protection of the Fourth
Amendment, the Court must next consider whether Defendant Chester’s killing of
Plaintiffs’ dog constituted a “seizure” under the Fourth Amendment. The Fourth
Amendment “protects two types of expectations, one involving ‘searches,’ the other
‘seizures.’” Jacobsen, 466 U.S. at 113. “A seizure of property occurs when there is
some meaningful interference with an individual’s possessory interests in that property.”
Id. Destroying property meaningfully interferes with an individual’s possessory interest
in that property. Id. at 124–25. Therefore, when Defendant Chester killed Plaintiffs’
dog, he “seized” Plaintiffs’ “effects.” See Carroll, 712 F.3d at 649 (unreasonable killing
of a companion animal constitutes an unconstitutional seizure under the Fourth
Amendment); Viilo, 547 F.3d at 710 (same); Maldonado, 568 F.3d at 271 (same);
Altman, 330 F.3d at 205 (“[W]hen the officers destroyed the dogs, they ‘seized’ plaintiffs’
‘effects.’”); Brown, 269 F.3d at 210; Fuller, 36 F.3d at 68 (“The killing of the dog is a
destruction recognized as a seizure under the Fourth Amendment.”).
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In support of Defendant Chester’s argument that Plaintiffs do not have
standing to assert a Fourth Amendment violation against him, he absurdly contends
“an individual does not have standing to assert Fourth Amendment rights on behalf of
another.” (Doc. # 8 at 3–4.) However, the crux of Plaintiffs’ claim is that Defendant
Chester violated their rights when he unreasonably seized their property, not that Ava
herself has Fourth Amendment rights. See Kimcheloe v. Caudle, No. A-09-CA-010LY,
2009 WL 3381047 at *6 (W.D. Tex. Oct. 16, 2009) (finding defendants’ argument—that
plaintiffs’ Fourth Amendment claim is without merit because “a dog has no 4th
Amendment rights” and “[a]s a matter of law, there can never be excessive force under
the 4th Amendment applied to a dog”—misplaced because plaintiffs alleged a claim
on behalf of themselves and not their dog); see also Fuller, 36 F.3d at 68 (“[T]he
destruction of property by state officials poses as much of a threat, if not more, to
people’s right to be ‘secure in their effects’ as does the physical taking of them.”). 2
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Defendant Chester also argues that he did not seize Plaintiffs’ property because he did not
intend to gather evidence to use against Plaintiff Moore. (Doc. # 8 at 5.) Defendant Chester
cites to Graham v. Connor, 490 U.S. 386 (1989), which, under even the most liberal reading
does not stand for the proposition Defendant Chester asserts. Instead, in that case, the
Supreme Court declared that § 1983 excessive use of force claims are properly analyzed as
violations of the Fourth Amendment, rather than under substantive due process. Id. at 398.
Likewise, Defendant Chester cites to Rakas v. Illinois, 439 U.S. 128 (1978) to claim that
“a person is aggrieved under the Fourth Amendment when evidence is illegally seized and with
the intent of using it against them in a future legal action.” While this may be true, it is not the
only circumstance in which a person can assert his or her Fourth Amendment rights. See
Soldal v. Cook Cnty., III., 506 U.S. 56, 68 (1992) (owners of a mobile home destroyed by a
sheriff appropriately brought their claim under § 1983 for a deprivation of property protected by
the Fourth Amendment). Defendant Chester confuses the exclusionary rule in criminal matters
with a civil claim for deprivation of property under § 1983.
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Plaintiffs have stated a viable claim for deprivation of property under the Fourth
Amendment. Thus, the motion to dismiss on the Title 42 U.S.C. § 1983 Fourth
Amendment violation claim against Defendant Chester is denied. 3
B.
MUNICIPAL LIABILITY CLAIM PURSUANT TO 42 U.S.C. § 1983
The Town of Erie argues that Plaintiffs failed to state a claim as to their second
claim because Plaintiffs did not establish an underlying constitutional deprivation under
the Fourth Amendment. (Doc. # 8 at 5.) The Court finds that Plaintiffs did not establish
the requisite elements of a municipal claim against the Town of Erie.
It is well-settled that to establish a municipal liability claim pursuant to Title 42
U.S.C. § 1983, a plaintiff must demonstrate: (1) the existence of a municipal policy or
custom, and (2) a direct causal link between the injury alleged and a municipal policy
or custom. 4 Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).
A “municipal policy or custom” may include the “failure to adequately train or supervise
employees, so long as that failure results from ‘deliberate indifference’ to the injuries
that may be caused.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (citing
City of Canton v. Harris, 489 U.S. 378, 388–91 (1989) (A failure to train can support a
claim against a municipality if “the need for more or different training is so obvious, and
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The Court declines to address Defendant Chester’s arguments regarding qualified immunity,
which he raises for the first time in his reply. However, he is free to raise these arguments at
the summary judgment stage.
4
Citing to Holland ex. re. Overdorff v. Harrington, 268 F.3d 1179, 1187 (10th Cir. 2001), the
Town of Erie asserts that Plaintiffs must establish “an affirmative link between the training,
policies, and supervision provided by the Town and the constitutional deprivation alleged in
the Complaint.” (Doc. # 8 at 5.) However, Holland addresses supervisory liability in a § 1983
action, 268 F.3d at 1187, and does not address municipal liability, which is the basis of Plaintiffs’
claim. (Doc. # 10 at 9.)
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the inadequacy is so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent”
to the need for additional training.); Brammer-Hoelter v. Twin Peaks Charter Acad.,
602 F.3d 1175, 1189–90 (10th Cir. 2010)).
A municipality may be held liable under § 1983 only for its own unconstitutional
or illegal policies and not for the tortious acts of its employees. Barney, 143 F.3d at
1307; see Bryson, 627 F.3d at 788 (a municipality may not be held liable under § 1983
solely based on its status as an employer). “That a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s
shortcomings may have resulted from factors other than a faulty training program.” City
of Canton, 489 U.S. at 390–91. “Neither will it suffice to prove that an injury or accident
could have been avoided if an officer had had better or more training, sufficient to equip
him to avoid the particular injury-causing conduct.” Id. at 391. “Such a claim could be
made about almost any encounter resulting in injury, yet not condemn the adequacy of
the program to enable officers to respond properly to the usual and recurring situations
with which they must deal.” Id.
In their Complaint, Plaintiffs allege that Defendant Chester previously shot and
killed another family pet (Doc. # 3, ¶ 55), and that the Town of Erie consciously or
deliberately chose to disregard the risk of harm in failing to implement a policy after the
first pet was killed (Doc. # 10 at 10). One previous instance, however, is not sufficient
to prove a municipal policy or custom. See City of Canton, 489 U.S. at 391
(“[A]dequately trained officers occasionally make mistakes; the fact that they do says
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little about the training program or the legal basis for holding the city liable.”). The Court
finds that this one prior incident is insufficient to provide the Town of Erie with the actual
or constructive notice that it needed to implement a policy or training program. The
Town of Erie was not “deliberately indifferent” to the need for additional training, thus,
the Court grants the motion to dismiss on this claim.
C.
STATUTE OF LIMITATIONS FOR STATE LAW CLAIMS
A claim is subject to dismissal for failure to state a claim for relief if the
allegations in the complaint show that relief is barred by the applicable statute of
limitations. Jones v. Bock, 549 U.S. 199, 215 (2007). The defense of statute of
limitations may be resolved upon a motion to dismiss where the complaint shows on its
face that the action has not been instituted within the statutory period. See Aldrich v.
McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (“While the statute
of limitations is an affirmative defense, when the dates given in the complaint make
clear that the right sued upon has been extinguished, the plaintiff has the burden of
establishing a factual basis for tolling the statute.”)
Defendant Chester argues that Plaintiffs’ claims for intentional infliction of
emotional distress and willful and wanton negligence should be dismissed as barred by
the statute of limitations. (Doc. # 8 at 6.) Colo. Rev. Stat. § 13–80–103(1)(c) provides,
in pertinent part, that “[a]ll actions against sheriffs, coroners, police officers, firefighters,
national guardsmen, or any other law enforcement authority” shall be “commenced
within one year after the cause of action accrues.” Plaintiffs filed their complaint on
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July 5, 2012, and Defendant Chester killed their dog over a year earlier, on May 10,
2011. (Doc. # 10 at 13.)
However, Plaintiffs argue that the two-year limitation of Colo. Rev. Stat. § 13–80–
102 applies to these claims because they are “actions upon liability created by a federal
statute.” § 13–80–102 states, in pertinent part, that “civil actions, regardless of the
theory upon which suit is brought, or against whom suit is brought, shall be commenced
within two years after the cause of action accrues” for tort actions, including negligence,
and “actions upon liability created by a federal statute where no period of limitation is
provided in said federal statute.” Colo. Rev. Stat. § 13–80–102(1)(a)(g). Although Colo.
Rev. Stat. § 13–80–102 governs the statute of limitations for § 1983 claims, Defendant
Chester asserts his statute of limitations defense only as to Plaintiffs’ intentional
infliction of severe emotional distress and willful and wanton negligence claims, which
arise under Colorado law, rather than § 1983. See Nicholas v. Boyd, 317 F. App’x 773,
777 (10th Cir. 2009) (citing Blake v. Dickason, 997 F.2d 749, 750–51 (10th Cir. 1993));
Nieto v. State, 952 P.2d 834, 844 (Colo. App. 1997) reh’g denied, cert. granted, aff’d
in part, rev’d in part on other grounds, State v. Nieto, 993 P.2d 493 (Colo. 2000)
(In Colorado the applicable statute of limitations for § 1983 actions, even those asserted
against enforcement officers, is the two-year limitation period of § 13–80–102(1)(g).).
Moreover, applying rules of statutory construction, the Tenth Circuit has held that
the one-year limitation period in Colo. Rev. Stat. § 13–80–103 applies to actions against
police officers because it is specific, whereas § 13–80–102(a) is a general statute of
limitation. Donohue v. Hoey, 109 F. Appx. 340, 369 (10th Cir. 2004) (“a specific statute
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preempts a general statute”). Therefore, Colorado’s one-year statute of limitations
applies to these state claims. See id.; Handy v. Pascal, 2011 WL 5176153, at *9–10
(D. Colo. Aug. 29, 2011) (Colo. Rev. Stat. § 13-80-103(1)(c) applies to actions against
police officers; thus, plaintiff was required to bring his state-law tort claims within the
one year, rather than the two-year limitations period applicable to § 1983 claims), aff’d
and adopted by 2011 WL 5240435, (D. Colo. Oct. 31, 2011); McTwigan-Evans v.
Spaulding, 2006 WL 1517735, at *1 (D. Colo. May 30, 2006) (The statute of limitations
under Colo. Rev. Stat. § 13-80-103(1)(c) for actions against a police officer is one
year.).
Plaintiffs further contend that, even if the Court determines that the one year limit
applies, their state law claims should not be dismissed because the cause of action
“accrue[s] on the date both the injury and its cause are known or should have been
known by the exercise of reasonable diligence.” See Colo. Rev. Stat. § 13-80-108(1).
Here, it is undisputed that Defendant Chester shot Plaintiffs’ dog on May 10, 2011.
(Doc. # 10 at 13; Doc. # 8 at 6.) Plaintiff Moore was present when Defendant Chester
shot her dog, therefore the dates given in the Complaint make clear that Plaintiffs
discovered or reasonably should have discovered their injury on May 10, 2011.
See Aldrich, 627 F.2d at 1041. Therefore, the statute of limitations on Plaintiff’s state
law claims began to run when Defendant Chester shot Plaintiffs’ dog.
Plaintiffs argue, without citing to authority, that “some of the conduct that gives
rise to [their] claims had not yet occurred.” (Doc. # 10 at 14.) Plaintiffs offer, by way of
example, that “Erie’s so called ‘investigation’ into the shooting and Defendant Chester’s
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attempt to cover up what happened did not all occur on May 10, 2011 [n]or was it
immediately known to Plaintiffs that Chester had previously killed another family dog
while employed by Defendant Erie.” (Doc. # 10 at 14.) These examples are not a
sufficient factual basis to toll the statute of limitations or establish that the date of
Plaintiffs’ injury occurred on a day other than May 10, 2011. A claim for intentional
infliction of severe emotional distress accrues “on the date when the injury was incurred
and the emotional impact was felt.” Cline v. S. Star Cent. Gas Pipeline, Inc., 191
F. App’x 822, 827 (10th Cir. 2006) (quoting Moore v. Luther ex. rel. Luther, 291 F. Supp.
2d. 1194, 1199 (D. Kan. 2003)). Similarly, a negligence cause of action accrues on the
date both the injury and its cause are known or should have been known by the
exercise of reasonable diligence. P.R. v. Zavaras, 49 F. App’x 836, 839 (10th Cir.
2002); Brooks v. Bank of Boulder, 891 F. Supp. 1469, 1481 (D. Colo. 1995). Here,
the alleged facts show that Plaintiffs knew on May 10, 2011 the injury and its cause
essential to their claim against Defendant Chester (i.e. that Defendant Chester killed
their dog). Thus, the Court concludes that Plaintiffs’ claims for intentional infliction of
severe emotional distress and willful and wanton negligence should be dismissed as
time-barred because Plaintiffs filed them more than one year after May 10, 2011.
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IV. CONCLUSION
Based on the foregoing, it is ORDERED that Defendants’ Motion to Dismiss
(Doc. # 10) is GRANTED IN PART and DENIED IN PART. Specifically, it is ORDERED
that Plaintiffs’ Second, Third, and Fourth Claims are DISMISSED WITH PREJUDICE.
DATED: July
19
, 2013
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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