Stephens v. Time Customer Service, Inc. et al

Filing 31

ORDER: Plaintiff and Counterclaim-Defendant Nina Stephens's Motion to Dismiss Counterclaim (Doc. # 26 ) is GRANTED IN PART. Counts I and II of the Counterclaim are DISMISSED as preempted by ERISA. Counts III and IV are DISMISSED with leave to amend by November 3, 2017. Signed by Judge Virginia M. Hernandez Covington on 10/24/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NINA STEPHENS,
Plaintiff,
v.

Case No. 8:17-cv-1338-T-33AEP

TIME CUSTOMER SERVICE, INC.,
SEVERANCE PLAN and HENRY
LESCAILLE, as Plan
Administrator,
Defendants.
/
ORDER
This matter comes before the Court pursuant to Plaintiff
and Counterclaim-Defendant Nina Stephens’s Motion to Dismiss
Counterclaim

(Doc.

#

26),

filed

on

September

24,

2017.

Defendants and Counterclaim-Plaintiffs Time Customer Service,
Inc.

Severance

Plan

(“TCS

Plan”)

and

Henry

Lescaille

responded on October 10, 2017. (Doc. # 29). For the reasons
that follow, the Motion is granted in part as set forth
herein.
I.

Background
The following facts are taken from the TCS Plan and

Lescaille’s Counterclaim. On September 3, 2015, Time, Inc.
and Stephens “entered into a contractual written Separation
1

Agreement and General Release.” (Doc. # 22 at 14). “The
Agreement explained that Time Customer Service, Inc. was
establishing a severance program in accordance with the terms
of the Plan, and that [Stephens] would be eligible for
$34,693.65 in severance benefits under the terms of the
severance program.” (Id.). But, “as a condition precedent to
receiving such benefits,” Stephens had to sign and return the
termination letter Agreement and attached release. (Id.).
Stephens signed and returned both the termination letter
and release. (Id. at 14-15). The termination letter stated,
in relevant part:
You acknowledge and agree that the payment(s)
and/or benefit(s) provided to you and/or on your
behalf under the Severance Plan and pursuant to
this Agreement are in full discharge of any and all
liabilities and obligations of the Company to you,
monetarily or with respect to employee benefits or
otherwise, including but not limited to any and all
obligations arising under any alleged written or
oral agreement, policy plan or procedure of the
Company and/or any alleged understanding or
arrangement between you and the Company. You
further agree that other than what you will receive
under this Agreement and the Severance Plan, you
have received all compensation, benefits, notice
and leave to which you were entitled in connection
with your employment and separation from employment
with the Company. In the event you breach any of
the terms of this Agreement, you acknowledge and
agree that you shall forfeit any remaining amounts
due to you under this Agreement, and the Company
may seek all available relief under law or in
equity, including, but not limited to, recoupment
of amounts paid to you pursuant to this Agreement.
2

(Doc. # 22-1 at 4).
Among other things, the release provided that:
this General Release is intended to and shall
release the Time Inc. Entities and Persons from any
and all claims, whether known or unknown, which
Releasors ever had or may now have against any of
the Time Inc. Entities and Persons arising out of
my employment, the terms and conditions of such
employment, and/or the termination or separation of
my employment, including but not limited to . . .
(ii) any claims under the Employee Retirement
Income Security Act of 1974 . . .
(Id. at 8).
“The Plan is an employee benefit plan sponsored by Time
Customer Service, Inc., a subsidiary and affiliated entity of
Time Inc., one of the ‘Time Inc. Entities and Persons’ as
defined

by

the

Agreement,

and

therefore

a

third-party

beneficiary under the Agreement.” (Id. at 16). And “Lescaille
is an employee of Time Inc., the named fiduciary of the Plan,
one of the ‘Time Inc. Entities and Persons’ as defined in the
Agreement, and therefore a third-party beneficiary under the
Agreement.” (Id.). The TCS Plan and Lescaille “have performed
all conditions, covenants and promises required by them to be
performed in accordance with the terms and conditions of the
Agreement, including payment to [Stephens] of $34,693.65 in
severance pay.” (Id. at 17). According to the TCS Plan and
Lescaille, “[b]y asserting her [ERISA] claims against [them]

3

in this action, [Stephens] has breached and continued to
breach the Agreement and the General Release.” (Id.).
Stephens filed her three-Count Complaint in this Court
on June 6, 2017, against the TCS Plan and Lescaille as Plan
Administrator for the TCS Plan. (Doc. # 1). The Complaint
asserts claims under ERISA §§ 502(a)(1)(B), 502(a)(3), and
502(c)(1), as codified in 29 U.S.C. § 1132, for denial of
benefits, breach of fiduciary duty, and failure to respond to
document requests. (Id.). The TCS Plan and Lescaille filed
their Motion to Dismiss on August 1, 2017, (Doc. # 8), which
the Court denied on August 22, 2017. (Doc. # 15).
Then, on September 5, 2017, the TCS Plan and Lescaille
filed their Amended Answer and Counterclaims. (Doc. # 22).
The

TCS

Plan

and

Lescaille,

as

Counterclaim-Plaintiffs,

assert four counterclaims against Stephens: Count I is for
breach of contract; Count II is for specific performance;
Count III is for declaratory relief, seeking a declaration
that the release agreement is binding on Stephens; and Count
IV for equitable restitution pursuant to § 502(a)(3) of ERISA,
29 U.S.C. § 1132(a)(3). Stephens now moves to dismiss the
counterclaims, arguing that Count I and II are preempted by
ERISA and the Court lacks jurisdiction over Counts III and

4

IV. (Doc. # 26). The TCS Plan and Lescaille have responded,
(Doc. # 29), and the Motion is ripe for review.
II.

Legal Standard
A motion to dismiss a counterclaim under Rule 12(b)(6)

of the Federal Rules of Civil Procedure is evaluated in the
same manner as a motion to dismiss a complaint. Stewart Title
Guar. Co. v. Title Dynamics, Inc., No. 2:04–cv–316–FtM–33SPC,
2005

WL

2548419,

at

*1

(M.D.

Fla.

Oct.

11,

2005).

A

counterclaim must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). In deciding a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), a court must
accept all factual allegations in the counterclaim as true
and

construe

them

in

the

light

most

favorable

to

the

counterclaim plaintiff. See United Techs. Corp. v. Mazer, 556
F.3d 1260, 1269 (11th Cir. 2009).
“While a [counterclaim] attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
. . . a plaintiff’s obligation to provide the grounds of his
entitlement

to

relief

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)(internal citations and quotations marks
5

omitted). “Factual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all the allegations in the complaint are true.” Id. (internal
citations omitted).
A counterclaim plaintiff must plead enough facts to
state a plausible basis for the claim. Id.; James River Ins.
Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th
Cir.

2008)(“To

survive

dismissal,

the

[counterclaim’s]

allegations must plausibly suggest that the plaintiff has a
right to relief, raising that possibility above a speculative
level; if they do not, the plaintiff’s [counterclaim] should
be dismissed.”). Additionally, “the tenet that a court must
accept

as

true

[counterclaim]

all
is

of

the

allegations

inapplicable

to

contained

legal

in

a

conclusions.

Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. Analysis
A.

Supplemental Jurisdiction

Stephens

first

requests

that

the

Court

decline

to

exercise supplemental jurisdiction over the Counterclaim. She
does

not

believes

identify
the

Court

over

which

should

not
6

specific
exercise

counterclaims
its

she

supplemental

jurisdiction. (Doc. # 26 at 3-4). But she notes that the
“Counterclaim is based on allegations that Stephens breached
an agreement” and is thus “a state law based claim that can
require a jury trial.” (Id.). Therefore, it appears Stephens
is addressing only Count I for breach of contract and Count
II for specific performance of a contract. According to
Stephens, because jury trials are not permitted under ERISA,
these two state law claims “threaten[] to disrupt

what is a

straightforward ERISA case.” (Id. at 4).
“[I]n any civil action of which the district courts have
original

jurisdiction,

the

district

courts

shall

have

supplemental jurisdiction over all other claims that are so
related

to

claims

in

jurisdiction

that

they

controversy

under

the

action

form

Article

part
III

within
of

of

the
the

such

original

same

case

United

or

States

Constitution.” 28 U.S.C. § 1367(a). Pursuant to 28 U.S.C. §
1367(c),

a

district

court

has

discretion

to

decline

supplemental jurisdiction under four circumstances:
(1) the claim raises a novel or complex issue of
State law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed all claims
over which it has original jurisdiction, or

7

(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C.A. § 1367(c).
The Court agrees with the TCS Plan and Lescaille that
“[n]one of these circumstances are present here.” (Doc. # 29
at 14). Stephens’s ERISA claims have not been dismissed.
Neither

party

alleges

the

counterclaims

raise

novel

or

complex issues of state law or that the breach of contract or
specific

performance

counterclaims

predominate

over

Stephens’s ERISA claims. And the Court does not consider
Stephens’s concern over a potential jury trial of these claims
an

exceptional

jurisdiction.

circumstance

Therefore,

the

that
Court

warrants
determines

declining
that

the

exercise of supplemental jurisdiction over the claims is
proper.
B.
Next,

ERISA Preemption
Stephens

argues

that

Count

I,

for

breach

of

contract, and Count II, for specific performance of that
contract, are preempted by ERISA. ERISA provides that ERISA
“shall supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan described
in section 1003(a) of this title and not exempt under section
1003(b) of this title.”

29 U.S.C. § 1144(a).

8

“Complete or ‘super preemption’ exists where a plaintiff
seeks relief that is available under 29 U.S.C. § 1132(a), the
civil

enforcement

provisions

of

ERISA.”

Johnson

v.

Unum

Provident, 363 F. App’x 1, 3 (11th Cir. 2009)(citing Whitt v.
Sherman Int’l Corp., 147 F.3d 1325, 1330 (11th Cir. 1998)).
“There

is

complete

preemption

when

four

elements

are

satisfied.” Id. “First, there must be a relevant ERISA plan.
Second, the plaintiff must have standing to sue under that
plan. Third, the defendant must be an ERISA entity. Finally,
the complaint must seek compensatory relief akin to that
available under § 1132(a).” Butero v. Royal Maccabees Life
Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999)(citations
omitted). “[F]ederal courts have subject-matter jurisdiction
over state-law claims that have been superpreempted.” Id.
“Even if a claim is not subject to super preemption, it
may be subject to ‘defensive preemption.’” Johnson, 363 F.
App’x

at

3.

jurisdiction

“It
over

does
the

not

confer

claim,

but

federal

subject-matter

defensive

preemption

provides an affirmative defense that requires a federal court
to dismiss the preempted state-law claim.” Id. Defensive
preemption arises when claims “seek relief under state-law
causes of action that ‘relate to’ an ERISA plan.” Butero, 174
F.3d at 1215 (citation omitted). “A party’s state law claim
9

‘relates to’ an ERISA benefit plan for purposes of ERISA
preemption

whenever

the

alleged

conduct

at

issue

is

intertwined with the refusal to pay benefits.” Garren v. John
Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir.
1997); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
47 (1987)(noting “the expansive sweep of the pre-emption
clause” and that “[t]he phrase ‘relate to’ was given its broad
common-sense meaning, such that a state law ‘relate[s] to’ a
benefit plan ‘in the normal sense of the phrase, if it has a
connection with or reference to such a plan.’” (internal
citation and quotation marks omitted)).
Stephens is unclear as to whether she contends Count I
and II are completely or defensively preempted. But Stephens
argues the claims should be dismissed as preempted by ERISA
because the termination letter Agreement and release relate
to the TCS Plan. (Doc. # 26 at 4-5). Because defensive
preemption concerns the dismissal of claims while complete
preemption involves the recharacterizing of state claims as
ERISA claims under § 1132(a), the Court interprets Stephens’s
Motion as arguing for defensive preemption. See Ervast v.
Flexible Prod. Co., 346 F.3d 1007, 1014 (11th Cir. 2003)(“The
defensive preemption issue . . . is substantive; therefore,
either in state or federal court, when a state law claim is
10

brought, the defendant may raise the defense that the claims
are preempted by ERISA under § 1144, and should be dismissed.
Super preemption, on the other hand, recharacterizes the
state law claim into a federal claim under § 1132, so long as
the other three Butero elements are present.”).
According to Stephens, “[t]he Termination Letter and the
Release are not only related to the Plan, they are integral
to the Plan” because they “set the terms for eligibility to
participate in the Plan.” (Id. at 5). In fact, the termination
letter

provides:

“In

exchange

for

entering

into

this

Agreement and signing the Release, and subject to other terms
and

conditions

of

the

Severance

Plan,

you

will

receive

benefits under the Severance Plan . . . .” (Doc. # 22-1 at
2). Therefore, Stephens argues Count I “is based on the TCS
Plan and requires the Court to interpret that plan.” (Doc. #
26 at 5). In contrast, the TCS Plan and Lescaille insist that
both

Counts

I

and

II

“do

not

require

reference

to

or

interpretation of an ERISA plan and are not preempted by the
statute.” (Doc. # 29 at 11).
The Court agrees with Stephens that the termination
letter and release “relate to” the TCS Plan because Stephens’s
receipt of the benefits under the Plan, as outlined in the
termination letter, were contingent upon her signing that
11

letter and release. Cf. Vesely v. Cont’l Cas. Co., 101 F.
Supp. 2d 1054, 1056 (N.D. Ill. 2000)(“[T]he document’s title,
as well as its contents, clearly demonstrates that the Release
is an integral component of the ERISA plan. The only way a
Continental employee fired in a RIF can obtain the enhanced
52–week benefits is to sign the Release. Obviously, the
Release

‘relates

to’

Continental’s

benefit

plan.”).

The

letter purported to provide a calculation of the severance
pay to which Stephens was entitled under the Plan — an
incorrect calculation, in Stephens’s eyes — and, therefore,
interpretation of the letter requires reference to the TCS
Plan. Because the breach of contract claim relates to an
ERISA-governed plan, Count I is defensively preempted and is
dismissed. And, because Count II for specific performance of
the Agreement similarly relates to the TCS Plan, Count II is
also dismissed as defensively preempted.
C.

Subject Matter Jurisdiction

Stephens also argues that Counts III and IV should be
dismissed because the Court lacks jurisdiction to adjudicate
them. The Court will address each count in turn.
1.
In

Count III for Declaratory Relief

Count

declaratory

III,

judgment

the
that

TCS
the
12

Plan

and

Lescaille

“Agreement

is

seek

binding

a

on”

Stephens, as well as a “declaration of their rights and duties
under the Agreement, and the rights and duties of [Stephens],
including a determination that [Stephens] is bound by the
Agreement.” (Doc. # 22 at 20). They also seek “an order
specifically enforcing the Agreement and dismissing with
prejudice, or requiring [Stephens] to dismiss with prejudice
her claims.” (Id.). But the TCS Plan and Lescaille do not
state under what law they are seeking this relief.
Stephens notes that the “Declaratory Judgment Act does
not expand the jurisdiction of the federal courts” and that
a separate “basis for subject matter jurisdiction must be
found.” (Doc. # 26 at 6). Despite that reference to the
Declaratory Judgment Act, Stephens argues that Count III is
seeking a declaration under a section of ERISA that does not
allow for such relief for plans and plan administrators. (Id.
at

6-7).

declaratory

Indeed,

the

judgments

Eleventh
are

Circuit

unavailable

has

to

held

plans

that

and

plan

administrators under § 1132(a)(3)(B) of ERISA. See Gulf Life
Ins.

Co.

v.

Arnold,

809

F.2d

1520,

1523

(11th

Cir.

1987)(holding that an ERISA fiduciary could not maintain a
declaratory judgment action under § 1132(a)(3)(B) because
“the suit was not one for ‘equitable relief’; nor was it an
action ‘to enforce’ the plan”).
13

But the TCS Plan and Lescaille emphasize that “Count III
of the Counterclaim clearly asks for a declaration of the
parties’ rights under the terms of the Severance Agreement,
a contract.” (Doc. # 29 at 9)(emphasis original). They insist
this count is not brought under ERISA. (Id. at 10). Rather,
they

characterize

Count

III

as

seeking

a

declaration

regarding an independent contract — the termination letter
Agreement and release. (Id. at 9-10).
There are other legal bases under which they may seek a
declaratory judgment. Although a declaratory judgment under
ERISA is unavailable, the TCS Plan and Lescaille may be able
to plead a claim under the Declaratory Judgment Act. True,
the Declaratory Judgment Act itself does not provide federal
subject matter jurisdiction. See Stuart Weitzman, LLC v.
Microcomputer Res., Inc., 542 F.3d 859, 861–62 (11th Cir.
2008)(“[I]t is well established that the Declaratory Judgment
Act does not, of itself, confer jurisdiction upon federal
courts.”). But federal subject matter jurisdiction exists if
the declaratory judgment is predicated upon a potential or
pending federal claim by the declaratory judgment defendant
— such as the ERISA claims raised by Stephens. See Prudential
Ins.

Co.

of

Am.

1996)(“[Defendant

v.
plan

Doe,

76

F.3d

participant]
14

206,
may

210
be

(8th

Cir.

correct

that

nothing

in

ERISA

specifically

grants

a

fiduciary

the

authority to file a declaratory judgment action to interpret
a

policy.

Nonetheless,

the

Declaratory

Judgment

Act,

28

U.S.C. § 2201, provides jurisdiction. As determined above,
[Defendant] could have asserted [an ERISA] claim in federal
court.”

(citations

omitted)).

But,

because

Count

III

is

unclear regarding whether it is brought under the Declaratory
Judgment Act, the Court dismisses Count III with leave to
amend by November 3, 2017.
2.

Count IV for Restitution
502(a)(3) of ERISA

under

Section

For Count IV for restitution of the severance benefits
that were paid to Stephens, Stephens argues this counterclaim
should be “dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1)” because the Court “lacks the statutory
or constitutional power to adjudicate it.” (Doc. # 26 at 8).
According

to

Stephens,

the

Court

lacks

subject

matter

jurisdiction because reimbursement actions under ERISA

§

502(a)(3), codified as 29 U.S.C. § 1132(a)(3), are “limited
to only such relief as will enforce ‘the terms of the plan’
or the statute.” (Id. at 9). But Stephens insists “Defendants
do not allege that the Plan authorizes reimbursement suits”
and, in fact, “the Plan does not contain a reimbursement

15

provision.” (Id.). Additionally, Stephens argues the TCS Plan
and Lescaille are seeking an impermissible legal remedy —
trying to recover money from Stephens’s general assets —
because they “do not point to any TCS Plan provisions that
authorize[] the Plan to reach a specifically identifiable
fund.” (Id.).
Stephens

is

correct

that

only

equitable

relief

is

permitted under § 1132(a)(3) to enforce provisions of a plan.
See 29 U.S.C. § 1132(a)(3) (providing that a participant,
beneficiary, or fiduciary may seek either an injunction or
“other appropriate equitable relief” in order “to redress
such

violations”

or

“to

enforce

any

provisions

of

this

subchapter or the terms of the plan”). She is also correct
that restitution is sometimes a legal remedy, rather than an
equitable one.

See

Great-W.

Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204, 215 (2002)(“[W]hether [restitution] is
legal or equitable in a particular case (and hence whether it
is authorized by § 502(a)(3)) remains dependent on the nature
of the relief sought.”). The Supreme Court has held that “when
a

plan

seeks

restitution

from

a

beneficiary

who

is

in

possession of particular, identifiable funds, such a suit
sounds in equity and is cognizable under § 502(a)(3).” Admin.
Comm. for Wal-Mart Stores, Inc. Assocs.’ Health & Welfare
16

Plan v. Horton, 513 F.3d 1223, 1226-27 (11th Cir. 2008)(citing
Sereboff v. Mid Atl. Med. Servs., Inc., 126 S. Ct. 1869, 187477 (2006)). Thus, “a claim for restitution, in order to
constitute

a

claim

for

equitable

relief,

must

seek

specifically identifiable property that is within the control
or possession of the beneficiary.” Eldridge v. Wachovia Corp.
Long-Term Disability Plan, 383 F. Supp. 2d 1367, 1372 (N.D.
Ga. 2005).
The TCS Plan and Lescaille argue that they have pled
Count IV in the alternative, lest Count I for breach of
contract be preempted by ERISA. (Doc. # 29 at 16). In Count
IV, the TCS Plan and Lescaille treat the termination letter
Agreement and release signed by Stephens as part of the TCS
Plan’s terms. According to them, if the Agreement and release
are part of the TCS Plan, then seeking restitution based on
Stephens’s alleged violation of the release would be an action
to enforce the terms of the TCS Plan. (Id. at 17). And the
letter Agreement included a term that Stephens would forfeit
any remaining amounts due to her under the Agreement if she
breached its terms. (Doc. # 22-1 at 4). The Agreement also
stated “the Company may seek all available relief under law
or in equity, including, but not limited to, recoupment of
amounts

paid

to

[Stephens]

pursuant
17

to

this

Agreement.”

(Id.).

The

TCS

Plan

and

Lescaille

note

Stephens’s

own

assertion — that the termination letter and release “are
integral to the Plan” — as support for their decision to plead
Count IV under the alternative theory that the termination
letter Agreement and release are part of the TCS Plan. (Doc.
# 26 at 5).
The Court has not determined — and need not determine,
at this stage — whether the termination letter Agreement and
release qualify as terms of the TCS Plan. The Court has merely
determined

that

the

breach

of

contract

and

specific

performance claims “relate to” the TCS Plan and are thus
preempted under ERISA’s broad preemption provision. So, the
TCS Plan and Lescaille may seek to enforce the Agreement
through

§

1132(a)(3)

under

the

theory

that

the

letter

Agreement and release are part of the TCS Plan’s terms.
The
Lescaille

Court
have

next

analyzes

sufficiently

whether

pled

this

the

TCS

claim

as

Plan

and

one

for

equitable relief — a requirement for § 1132(a)(3) claims to
survive. Here, the TCS Plan and Lescaille ague they have
identified specific funds — the $34,693.65 that was paid to
Stephens pursuant to the TCS Plan — for which they seek
restitution. (Doc. # 29 at 18-19). But, at one point, Count
IV requests “compensatory damages . . . in the amount of
18

$34,693.65,” rather than restitution of the specific funds
paid to Stephens. (Doc. # 22 at 23). The Counterclaim does
not explicitly specify that the TCS Plan and Lescaille wish
to recoup only the funds paid to Stephens and only through
traditional equitable means.
In their response, the TCS Plan and Lescaille request
leave to amend in order to plead “a claim for equitable
restitution

under

ERISA

seeking

a

constructive

trust

or

equitable lien be imposed upon the portion of the specific
and

identifiable

severance

payment

fund

in

Stephens’s

possession.” (Doc. # 29 at 19). So that they may clarify the
form of relief sought, the Court dismisses Count IV with leave
to amend by November 3, 2017.
IV.

Conclusion
Therefore, the Motion is granted in part. Because they

relate to the TCS Plan, Counts I and II are dismissed as
preempted by ERISA. Counts III and IV are dismissed with leave
to amend by November 3, 2017.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

and

Counterclaim-Defendant

Nina

Stephens’s

Motion to Dismiss Counterclaim (Doc. # 26) is GRANTED IN
PART.
19

(2)

Counts I and II of the Counterclaim are DISMISSED as
preempted by ERISA.

(3)

Counts III and IV are DISMISSED with leave to amend by
November 3, 2017.
DONE and ORDERED in Chambers in Tampa, Florida, this

24th day of October, 2017.

20