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
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