DTC Energy Group, Inc. v. Hirschfeld et al

Filing 191

ORDER by Chief Judge Philip A. Brimmer on 3/23/2020, re: 134 Adam Hirschfeld's Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART. ORDERED that plaintiff's Twelfth Claim is DISMISSED WITH PREJUDICE for failure to state a claim.(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-01718-PAB-KLM
DTC ENERGY GROUP, INC., a Colorado Corporation,
Plaintiff,
v.
ADAM HIRSCHFELD,
JOSEPH GALBAN,
CRAIG HIRSCHFELD,
JOSEPH JOHNSON,
KATIE STROMSTAD,
ROSS RHINEHART, and
ALLY ENERGY SERVICES, INC., a Wyoming corporation,
Defendants.

ORDER

This matter is before the Court on defendant Adam Hirschfeld’s Motion for
Judgment on the Pleadings [Docket No. 134]. The Court has jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
I.

BACKGROUND
A.

Factual Background

Plaintiff DTC Energy Group, Inc. (“DTC”) is a consulting and staffing firm serving
the oil and gas industry. Docket No. 82 at 4, ¶ 8. 1 DTC’s business involves placing

1

These facts are drawn from Plaintiff’s Second Amended Verified Complaint and
Jury Demand [Docket No. 82]. The Court discusses only those allegations relevant to
resolution of the instant motions. Further background can be found in the Court’s
orders on DTC’s motion for a preliminary injunction and on various defendants’ motions

employees with companies in the oil and gas industry. Id. at 7, ¶ 20. In connection
with that business, DTC has confidential information, some of which it contends are
“trade secrets.” Id. at 12-14, ¶¶ 42-50.
In May 2013, DTC hired defendant Adam Hirschfeld (“Hirschfeld”) as a
salesman. Id. at 8, ¶ 27. In January 2014, DTC promoted Hirschfeld to be its business
development lead. Id. at 9, ¶ 29. As business development lead, Hirschfeld had
access to DTC’s confidential information. Id. ¶ 33. DTC and Hirschfeld executed an
employment agreement effective January 1, 2015. Id. ¶ 30; see also Docket No. 82-2
(copy of employment agreement). Paragraph 16 of that agreement provides, in
relevant part:
Except for an action exclusively seeking injunctive relief, any
disagreement, claim or controversy arising under or in connection with
this Agreement, Employee’s employment or termination of employment
with the Company shall be resolved by way of confidential binding
arbitration, pursuant to the Uniform Arbitration Act, C.R.S. § 13-22-201 et.
seq., to be conducted in the City and County of Denver, State of
Colorado, all costs of enforcement, collection, including reasonable
attorney’s fees, to be awarded to the party or parties substantially
prevailing therein.
Docket No. 82-2 at 7, ¶ 16. The employment agreement also includes a nonsolicitation
provision. Id. at 6, ¶ 12. The nonsolicitation provision does not apply, however, if the
employment agreement is terminated by Hirschfeld “because there has been a change
in the current equity ownership of [DTC].” Id.
In July 2014, DTC hired defendant Katie Stromstad (“Stromstad”) as a human

to dismiss. See Docket Nos. 57 and 160. The allegations in the complaint are to be
taken as true in considering a motion for judgment on the pleadings. Adams v. Jones,
577 F. App’x 778, 781-82 (10th Cir. 2014) (unpublished).
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resources specialist. Docket No. 82 at 5, ¶ 13. In November 2014, DTC hired
defendant Joseph Galban (“Galban”) as a staff accountant. Id. at 4, ¶ 10. From
approximately July 2015 to June 2016, DTC subleased office space to defendant Ross
Rhinehart (“Rhinehart”). Id. at 5, ¶ 14.
In the summer of 2015, DTC began discussing a potential business relationship
with defendant Ally Consulting, LLC (“Ally Consulting”). Id. at 15, ¶ 57. 2 Ally
Consulting provides similar staffing services in the oil and gas industry. Id. at 16, ¶ 59.
DTC agreed that it would assist Ally Consulting by “taking on its few employees and/or
contractors and by handling the associated administrative services . . . in exchange for
percentage-based payments from [Ally Consulting].” Id. at 15, ¶ 58. DTC and Ally
Consulting executed an agreement on January 11, 2016; Ally Consulting terminated the
agreement on July 11, 2016. Id. at 16, ¶¶ 60-62.
DTC alleges that, beginning in November 2015, Hirschfeld, defendant Craig
Hirschfeld, and defendant Joseph Johnson ( “Johnson”) began “plotting” to build up Ally
Consulting by “stealing DTC’s business.” Id. at 16, ¶ 64. DTC alleges that Hirschfeld,
Craig Hirschfeld, and Johnson agreed that Hirschfeld would work for Ally Consulting
while still employed by DTC, and that Hirschfeld would convince Galban and Stromstad
to assist him. Id. at 17, ¶ 66-67. DTC alleges that Hirschfeld would secure customers
on Ally Consulting’s behalf from customers who believed they were dealing with DTC,
and that Hirschfeld, Galban, Stromstad, and Rhinehart would email the customers
“onboarding paperwork on Ally letterhead that they had copied from DTC forms.” Id. at
2

At the time, Ally Consulting was known as Wyodak Staffing, LLC.
3

18, ¶¶ 73-74. Hirschfeld, Galban, Stromstad, and Rhinehart worked to conceal the
work they were doing for Ally Consulting from DTC’s owners. Id. at 20-21, ¶¶ 90-97.
In April 2017, there was a change in the equity ownership of DTC. Id. at 32,
¶ 180. On May 3, 2017, Hirschfeld resigned from DTC, effective May 31. Id., ¶ 187. In
late May 2017, Hirschfeld asked Rhinehart to obtain “confidential DTC financial
information” from Galban. Id. at 34, ¶ 195. Hirschfeld, Stromstad, and Galban now all
work for Ally Consulting. Id. at 35, ¶ 203. Before leaving DTC, Hirschfeld stole his
work laptop and flash drives that had “thousands of confidential DTC files he
downloaded to them.” Id. at 37, ¶ 220.
B.

Procedural History

DTC initiated this lawsuit on July 14, 2017. Docket No. 1. On the same day,
DTC moved for a temporary restraining order and preliminary injunction based on the
alleged misappropriation of its trade secrets by Hirschfeld, Galban, and Ally Consulting.
Docket No. 4. After a hearing on the motion on July 20, 2017, the Court denied DTC’s
request for a temporary restraining order, finding that DTC had failed to demonstrate a
likelihood of success on the merits of its misappropriation claims. See Docket No. 17
at 69.
On September 13, 2017, DTC filed an amended complaint and an amended
motion for a preliminary injunction. Docket Nos. 24, 25. The amended motion sought
relief against Adam Hirschfeld, Galban, and Ally Consulting for misappropriation of
trade secrets under federal and state law, breach of contract, and breach of the duty of
loyalty and unfair competition. Docket No. 25 at 2, 6-16. In response, on September
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26, 2017, Hirschfeld filed a motion to compel arbitration, arguing that Paragraph 16 of
the employment agreement required that DTC’s claims be resolved through arbitration.
Docket No. 26. On January 4, 2018, the Court denied the motion. Docket No. 37. The
Court concluded that, because DTC’s claims against Hirschfeld “exclusively [sought]
injunctive relief,” DTC’s claims fell within the exception in the employment agreement
for actions “exclusively seeking injunctive relief.” Id. at 5-6.
After an evidentiary hearing on January 30, 2018, the Court denied DTC’s
request for a preliminary injunction on March 2, 2018. Docket No. 57. The Court found
that DTC “presented no evidence . . . that defendants have retained access to [DTC’s]
proprietary information,” that defendants have “continued to appropriate DTC’s name or
resources to solicit business,” or that there is “ongoing confusion within the industry as
to the relationship between the two companies.” Id. at 16, 19. As a result, the Court
concluded that DTC had failed to demonstrate a likelihood of irreparable harm on all of
its claims save for the breach of contract claim. Id. at 16. The Court further concluded
that DTC had failed to demonstrate a likelihood of success on the merits of the breach
of contract claim because the nonsolicitation provision in the employment agreement
was unenforceable as a result of the change in equity ownership of DTC. Id. at 21.
The Court rejected DTC’s argument that the prior breach doctrine precluded Hirschfeld
from relying on the equity ownership clause as a defense to DTC’s attempt to enforce
the contract. Id. at 22-23.
The Tenth Circuit affirmed the Court’s denial of a preliminary injunction. See
DTC Energy Group, Inc. v. Hirschfeld, 912 F.3d 1263 (10th Cir. 2018). As to the
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Court’s ruling on irreparable harm, the Tenth Circuit “conclude[d] that the district court
did not abuse its discretion” in finding that DTC did not show a sufficient probability of
irreparable harm “[b]ased on [the Tenth Circuit’s] review of the evidence presented at
the preliminary injunction hearing.” Id. at 1271. As to likelihood of success on the
merits, the Tenth Circuit found that the Court “did not err” in finding that the prior
breach doctrine did not apply to Hirschfeld’s invocation of the change in ownership
clause. Id. at 1273-74.
On November 9, 2018, DTC filed its Second Amended Complaint (the
“complaint”). Docket No. 82. As relevant here, the complaint brings claims against
Hirschfeld for (1) breach of contract; (2) breach of the duty of loyalty; (3 and 4)
misappropriation of trade secrets under the federal Defend Trade Secrets Act
(“DTSA”), 18 U.S.C. § 1831 et seq., and the Colorado Uniform Trade Secrets Act
(“CUTSA”), Colo. Rev. Stat § 7-74-101 et seq.; (5) unjust enrichment; (6) civil theft; (7)
conversion; (8) civil conspiracy; (9) violation of the Civil Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962 et seq.; and (10) violation of the
Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq. Id. at 40-56,
¶¶ 241-345. As in the first amended complaint, DTC seeks only injunctive relief against
Hirschfeld, while it seeks both injunctive relief and money damages against the other
defendants.
On September 25, 2019, the Court entered an order dismissing all claims
against defendant Ally Energy Services, Inc., and some of the claims against Craig
Hirschfeld, Stromstad, Rhinehart, and Johnson. Docket No. 160. As relevant here, the
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Court dismissed DTC’s RICO claim against Craig Hirschfeld, Stromstad, Rhinehart, and
Johnson on the basis that DTC “failed to adequately allege a pattern of racketeering.”
Id. at 30.
II.

LEGAL STANDARD
The Court reviews a motion for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) much as it does a motion to dismiss pursuant to Rule 12(b)(6).
See Adams, 577 F. App’x at 781-82 (“We review a district court’s grant of a motion for
judgment on the pleadings de novo, using the same standard that applies to a Rule
12(b)(6) motion.”) (quoting Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA, 442
F.3d 1239, 1244 (10th Cir. 2006)). The Court must “accept all facts pleaded by the
non-moving party as true and grant all reasonable inferences from the pleadings in
favor of the same.” Id. at 782. To prevail, the moving party must show that “no material
issue of fact remains to be resolved and the party is entitled to judgment as a matter of
law.” United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462
(8th Cir. 2000). A party may raise arguments that could be made in a motion under
Rule 12(b)(6) in a motion under Rule 12(c). Fed. R. Civ. P. 12(h)(2).
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the
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pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery under some viable
legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration
marks omitted ).
III.

ANALYSIS
Hirschfeld’s argument in support of judgment on the pleadings is less than clear.

First, Hirschfeld notes – correctly – that DTC is not seeking money damages from
Hirschfeld as relief on any of the claims against him. Docket No. 134 at 5-6. Next,
Hirschfeld argues that this Court’s ruling on DTC’s motion for a preliminary injunction
and the Tenth Circuit’s affirmance of that order constitute the “law of the case” and
preclude DTC from obtaining any injunctive relief against Hirschfeld. Id. at 7-8.
Hirschfeld contends that these propositions, taken together, mean that all of DTC’s
claims fail because – as both monetary and injunctive relief are precluded – DTC
cannot obtain any relief from Hirschfeld. Id. at 8. On a somewhat separate track,
Hirschfeld suggests that, because DTC has “waived” damages against Hirschfeld on
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certain claims where damages is a required element of the claim, DTC cannot sustain
such claims. Id. at 9. The Court considers each argument in turn.
A.

Law of the Case

“When a court enunciates a rule of law in the course of a given case, the law of
the case doctrine generally requires the court to adhere to the rule throughout the
proceedings.” Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981). The doctrine
“govern[s] the same issues in subsequent phases of the same case.” Been v. O.K.
Industries, Inc., 495 F.3d 1217, 1224 (10th Cir. 2007).
“Preliminary or tentative rulings do not establish law of the case.” 18B Charles
A. Wright et al., Federal Practice & Procedure § 4478.5 (2d ed. Nov. 2019 update).
“[P]reliminary injunctions are ‘customarily granted on the basis of procedures that are
less formal and evidence that is less complete than in a trial on the merits.’” Att’y Gen.
of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (quoting Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981)).3 Accordingly, findings of fact and
conclusions of law made by a Court granting or denying a preliminary injunction are
generally not entitled to law of the case status, as they are “not binding at trial on the
merits.” Camenisch, 451 U.S. at 395; see also 18B Wright et al., Fed Prac. & Proc.
§ 4478.5. However, “[a] fully considered appellate ruling on an issue of law made on a
preliminary injunction appeal . . . does become the law of the case for further
proceedings in the trial court on remand and in any subsequent appeal.” 18B Wright et
3

Although the language in Camenisch refers only to “grant[ing]” a preliminary
injunction, the Tenth Circuit in Tyson Foods cited it in reviewing the denial of a
preliminary injunction. See Tyson Foods, 565 F.3d at 776.
9

al., Fed Prac. & Proc. § 4478.5.
In order to analyze what “law of the case” effect the orders entered by this Court
and the Tenth Circuit have, the Court must first identify which issues Hirschfeld
believes are entitled to law of the case status. The Court understands Hirschfeld to be
arguing that the law of the case is that (1) DTC cannot show irreparable harm from
Hirschfeld’s past misconduct, and (2) the employment agreement between Hirschfeld
and DTC cannot support injunctive relief as a result of present or future misconduct.
See Docket No. 134 at 7-8. As a result, Hirschfeld argues that DTC is precluded from
obtaining any injunctive relief in this case. See id.
The Court disagrees. First, Hirschfeld’s argument that “[i]njunctive relief can
only be obtained for continuing or prospective injury” is misplaced, as it ignores the
different legal standards governing preliminary and permanent injunctions. See id. at 7.
A party seeking a preliminary injunction must show that it is “substantially likely to
succeed on the merits” and “will suffer irreparable injury” absent an injunction. DTC
Energy, 912 F.3d at 1270. By contrast, a party seeking a permanent injunction must
show that it “has suffered an irreparable injury” and that “remedies available at
law . . . are inadequate to compensate for that injury.” Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 156 (2010).4 Thus, if DTC succeeds on its claims and is able to

4

In his reply brief, Hirschfeld cites cases from the Colorado Supreme Court to
argue that the standards for a preliminary and permanent injunction are essentially the
same. See Docket No. 136 at 2-3. However, “federal law governs . . . when a
preliminary injunction may issue” in cases heard in federal court. See Flood v.
ClearOne Commc’ns, Inc., 618 F.3d 1110, 1117 (10th Cir. 2010). The Court perceives
no reason why it would apply a state-law test for permanent injunctive relief.
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show that it suffered – in the past – an irreparable injury as a result of Hirschfeld’s
actions, it may be able to obtain a permanent injunction.
Moreover, the Court disagrees that any law of the case has been established as
to irreparable injury suffered by DTC. The Court’s factual findings in the preliminary
injunction order were based on the evidence before it at the time of the hearing. For
example, the Court concluded that DTC failed to show irreparable harm based on
misappropriation of trade secrets because DTC “presented no evidence . . . that
defendants have retained access to DTC’s proprietary information.” See Docket No. 57
at 16. The Tenth Circuit’s opinion was similarly “[b]ased on [its] review of the evidence
presented at the preliminary injunction hearing.” See DTC Energy, 912 F.3d at 1271.
Thus, the findings of fact made by both this Court and the Tenth Circuit were not made
upon a complete record. See Northglenn Gunther Toody’s LLC v. HQ8-10410-10450
Melody Lane, LLC, No. 16-cv-02427-WJM-KLM, 2018 WL 1762611, at *5 (D. Colo.
April 12, 2018) (holding that the law of the case was not established by preliminary
injunctions where the district court’s conclusions were explicitly based on the record
before it at the time). Because such findings of fact are “not binding at trial on the
merits,” DTC is entitled to present whatever information they may learn from discovery
– for example, evidence that Hirschfeld and the other defendants are still making use of
proprietary information – in order to attempt to prove their claims. See Camenisch, 451
U.S. at 395. Thus, the Court rejects Hirschfeld’s argument that the law of the case
precludes DTC from seeking injunctive relief.
To what extent the law of the case has been established as to the employment
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agreement is a more difficult question. In the preliminary injunction order, the Court
concluded that DTC was “unlikely” to succeed on the merits of its beach of contract
claim because it failed to show that the prior breach doctrine precluded Hirschfeld from
enforcing the equity ownership provision of the contract. See Docket No. 57 at 23.
The Tenth Circuit affirmed, agreeing that the prior breach doctrine did not apply. See
DTC Energy, 912 F.3d at 1274. The Tenth Circuit further concluded that the
nonsolicitation provision of the employment agreement expired one year after
Hirschfeld’s resignation. See id.
Interpretation of a contract is a question of law. See DTC Energy, 912 F.3d at
1273. In some situations, “[a] fully considered appellate ruling on an issue of law made
on a preliminary injunction appeal . . . does become the law of the case.” See 18B
Wright et al., Fed Prac. & Proc. § 4478.5. But see Northglenn Gunther Toody’s, 2018
WL 1762611, at *5 (declining to give law of the case effect to the court’s interpretation
of a contract). However, while some of these rulings may constitute the law of the case
as to the interpretation of the employment agreement,5 Hirschfeld urges the Court to
reach the blanket conclusion that DTC is precluded from seeking injunctive relief on
any of its claims. See Docket No. 134 at 8 (arguing that DTC “cannot assert” a claim
for injunctive relief against Hirschfeld). Hirschfeld’s motion wholly fails to analyze why
the previous rulings as to the employment agreement bar injunctive relief as to each
claim. For example, as to the breach of contract claim, Hirschfeld makes the bare
5

The Court declines to conclusively determine which of these rulings, if any, are
“the law of the case” because such determination is not necessary to resolve the
instant motion.
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statement that “equitable relief is barred by . . . the law of the case.” See Docket No.
134 at 9. Such a conclusory statement is insufficient to obtain judgment on the
pleadings. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (“A
motion for judgment on the pleadings should not be granted unless the moving party
has clearly established that . . . the party is entitled to judgment as a matter of law.”
(internal quotations omitted)). Because Hirschfeld has not demonstrated that the law of
the case precludes DTC from obtaining any injunctive relief, he has failed to meet his
burden to prove that he is entitled to judgment on the pleadings.
B.

Damages

Hirschfeld argues that several of DTC’s claims include damages as a required
element. See, e.g., Docket No. 134 at 8-9.6 Because DTC has elected not to pursue
money damages as relief, Hirschfeld contends that he is entitled to judgment as a
matter of law on the claims where damages is a required element. See id. at 9 (arguing
that DTC cannot succeed on its breach of the duty of loyalty claim “because [DTC]
waived the element of money damages”). However, Hirschfeld confuses the issue: the
elements necessary to sustain a claim are not the same as the remedy for those claims.
As the Court explained in its order on Hirschfeld’s motion to compel arbitration, the
assertion of claims in which damage is a necessary element does not “convert those
claims into a request for monetary relief.” See Docket No. 37 at 5. It does not fol low
that because DTC is not seeking money damages as a remedy from Hirschfeld it has
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Hirschfeld’s motion is unclear, but the Court understands him to argue that
DTC’s claims for breach of contract, breach of the duty of loyalty, unjust enrichment,
civil theft, civil conspiracy, RICO, and CFAA claims should fail on this basis.
13

failed to adequately plead those claims. Thus, the Court rejects Hirschfeld’s argument
that DTC’s election not to pursue money damages as a remedy means that its claims
that include damages as an element necessarily fail.7
C.

RICO Claim

Hirschfeld’s motion includes a passing reference to the motions to dismiss filed
by Craig Hirschfeld, Johnson, Stromstad, Rhinehart, and Ally Energy Services, Inc.,
suggesting that “[m]any of the arguments set forth in those motions are applicable to”
Hirschfeld’s motion. Docket No. 134 at 5. Hirschfeld does not explain how or why
these arguments are applicable, and the Court will not engage in that work
independently. Cf. Johnson v. Gov’t Emps. Ins. Co., 2014 WL 4648171 (D. Del. Sept.
12, 2014) (“[The Court is] not Captain Jack Sparrow, in search of the hidden treasure
from the ‘dreaded Isla de Muerta,’ the ‘island that cannot be found except by those who
already know where it is.’” (quoting Pirates of the Caribbean: The Curse of the Black
Pearl (2003)).
However, one exception is appropriate. In its complaint, DTC brings a claim for
relief under RICO against all defendants save Ally Consulting. Docket No. 82 at 54-55,
¶¶ 328-36. DTC alleges that Ally Consulting is an “enterprise” and that the individual

7

In his reply, Hirschfeld appears to argue that, because DTC seeks monetary
damages against the other defendants but injunctive relief against Hirschfeld, DTC has
impliedly conceded that money damages are adequate to compensate DTC for its
injuries and therefore cannot obtain permanent injunctive relief. Docket No. 136 at 3-5.
This argument is not properly before the Court. See Novosteel SA v. U.S., Bethlehem
Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“[R]eply briefs reply to arguments
made in the response brief – they do not provide the moving party with a new
opportunity to present yet another issue for the court’s consideration.”).
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defendants “conducted or participated in . . . the affairs and activities of Ally
[Consulting] through a pattern of racketeering activity.” Id. at 54, ¶¶ 329-30. In its
order resolving the motions to dismiss, the Court concluded that the complaint failed to
state a RICO claim. Docket No. 160 at 29-32. Noting that a RICO claim requires that a
plaintiff demonstrate a pattern of racketeering activity, the Court found that this
requirement was not met because “(1) the complaint fail[ed] to allege sufficient
continuity to sustain a RICO claim, and (2) the complaint fail[ed] to adequately allege
two predicate acts.” Id. at 29-30 (internal quotations and citations omitted). The Court
sees no reason why this analysis, which was not based on any allegations in the
complaint specific to Craig Hirschfeld, Johnson, Stromstad, and Rhinehart, would differ
for the RICO claim as brought against Hirschfeld. Cf. Fed. R. Civ. P. 12(h)(2) (allowing
a party to raise arguments that could be made in a motion under Rule 12(b)(6) in a
motion under Rule 12(c). Accordingly, the Court will grant judgment on the pleadings
as to the RICO claim only.
IV.

CONCLUSION
For the foregoing reasons, it is
ORDERED that Adam Hirschfeld’s Motion for Judgment on the Pleadings

[Docket No. 134] is GRANTED IN PART and DENIED IN PART. It is further
ORDERED that plaintiff’s Twelfth Claim is DISMISSED WITH PREJUDICE for
failure to state a claim.

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DATED March 23, 2020.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

16