Zoellner v. St. Luke's Regional Medical Center, Ltd.

Filing 45

MEMORANDUM DECISION AND ORDER Plaintiff's Motion to Strike Portion of Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 35 ) is DENIED. Plaintiff's Motion to Strike Portion of Defendant's Motion to DismissPlaintiff's Amended Complaint (Dkt. 35 ) is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PATRICK A. ZOELLNER, M.D.,
Plaintiff,

Case No. 1:11-cv–00382-EJL
MEMORANDUM DECISION AND
ORDER

v.
ST. LUKE’S REGIONAL MEDICAL
CENTER, LTD.,
Defendant.

INTRODUCTION
The Court has before it Defendant St. Luke’s Regional Medical Center, Ltd.’s
(“St. Luke’s”) Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ.
P. 12(b)(6) (Dkt. No. 29) and Plaintiff Patrick A. Zoellner, M.D.’s (Dr. Zoellner”) Motion
to Strike Portion of Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (Dkt.
35). Having fully reviewed the record, the Court finds that the facts and legal arguments
are adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, this matter shall be decided on the record

MEMORANDUM DECISION AND ORDER - 1

before this Court without oral argument.

BACKGROUND
Dr. Patrick Zoellner is an anesthesiologist who practiced at St. Luke’s Regional
Medical Center from 2003 to 2010. Dr. Zoellner was not a hospital employee, however.
He was employed by Anesthesia Associates of Boise. Anesthesia Associates is St. Luke’s
exclusive provider of anesthesiology services.
Dr. Zoellner was forced to resign from Anesthesia Associates in the fall of 2010
when four principals told him that the company “had to go in a different direction . . . .”
Amended Complaint and Jury Demand, Dkt. 26, ¶ 43. According to Dr. Zoellner, St.
Luke’s coerced Anesthesia Associates into terminating him by threatening not to renew
the company’s exclusive contract unless Dr. Zoellner was gone.
Dr. Zoellner says St. Luke’s wanted to get rid of him because he insisted on safe
scheduling practices for surgeries, whereas St. Luke’s surgeons insist on scheduling
surgeries at times that are not in the patients’ best interests. As an example, Dr. Zoellner
alleges that St. Luke’s “often allows a neurosurgeon to perform surgeries from 7:00 a.m.
to 11:00 p.m. on Monday and Tuesday, because he wants to take off Thursday through
Sunday to go to Sun Valley.” Am. Compl., ¶ 32. More generally, Dr. Zoellner alleges
that St. Luke’s business culture “has been ‘to keep the surgeons happy – whatever the
surgeons want.’” Id. ¶ 31.

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In any event, Dr. Zoellner felt he had no choice but to accept the forced resignation
because he was “[r]easonably concerned that he would be blackballed, receive no good
references to be able to find other positions, receive no referrals for surgical work, and
[be] faced with an immediate end of income.” Id. ¶ 44. Dr. Zoellner accepted a job in
Denver, but with “significantly reduced income.” Id. ¶ 47. His wife was “also forced to
abandon her medical practice in Boise.” Id.
In August 2011, Dr. Zoellner sued St. Luke’s, alleging federal and state antitrust
violations, intentional interference with contract, and intentional interference with
prospective economic advantage. On June 19, 2012, this Court granted St. Luke’s motion
to dismiss the federal and state antitrust claims, but granted Dr. Zoellner leave to file an
amended complaint to see if Plaintiff could allege facts supporting an economic theory of
harm to competition that is “‘plausible’ in light of basic economic principles.” William
O. Gilley Enters., Inc. v. Atl. Richfield Co., 588 F.3d 659, 662 (9th Cir. 2009) (citations
omitted). See Memorandum Decision and Order, Dkt. 25, p. 8.
On July 10, 2012, Dr. Zoellner filed his Amended Complaint adding paragraphs
49 -55. In these paragraphs, Dr. Zoellner alleges St. Luke’s conduct was economically
driven to avoid losing market share to St. Alphonsus and that St. Luke’s alleged catering
to surgeons’ schedules was profit driven. Dr. Zoellner alleges his termination was due to
his opposition to the practice of scheduling of surgeries and had a “chilling effect” on the
remaining members of Anesthesia Associates from opposing allegedly unsafe scheduling

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practices. Dr. Zoellner alleges St. Luke’s conduct led to a market-wide decline in the
quality of surgical care provided by St. Luke’s and increased costs when St. Luke’s
constructed another surgical room at one of its facilities.
St. Luke’s filed its second motion to dismiss alleging the Amended Complaint still
does not state a claim for relief under the federal and state antitrust statutes and also
moves for dismissal of the state law tort claims of Intentional Interference with Contract
and Intentional Interference with Prospective Economic Advantage.
MOTION TO STRIKE
Dr. Zoellner moves to strike the portion of the second motion to dismiss that
relates to the state tort claims arguing St. Luke’s failure to raise these arguments in its
first motion to dismiss, prevents it from raising the arguments now. St. Luke’s argues
that under Fed. R. Civ. P. 12(b)(6) the defense of failure to state a claim upon which relief
may be granted cannot be waived, so its motion to dismiss the tort claims is timely.
Alternatively, if not timely, St. Luke’s argues there is no prejudice to Plaintiff and the
Court should exercise its discretion to resolve the legal questions presented on the tort
claims.
The Court finds technically that St. Luke’s should have raised its Rule 12(b)(6)
arguments in its first motion to dismiss. However, since the defense was not waived by
not including it in the first motion pursuant to Fed. R. Civ. P. 12(h)(2), the Court finds the
better course of action is to consider the merits of the motion as the motion to dismiss the

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tort claims does not appear to have been filed be for purposes of delay and there does not
appear to be any prejudice to Plaintiff since he was allowed to file a brief in response to
the motion to dismiss the tort claims. See Fed. Express Corp. v. United States Postal
Serv., 40 F. Supp. 2d 943, 948-49) (W.D. Tenn 1999); SCO Grp., Inc. v. Novell, Inc., 377
F. Supp. 2d 1145, 1151 (D. Utah 2005). The motion to strike is denied.

MOTION TO DISMISS
1. STANDARD OF REVIEW
A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6) “tests the
legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). A
complaint generally must satisfy “only the minimal notice pleading requirements” of
Federal Rule of Civil Procedure 8(a)(2) to avoid a 12(b)(6) dismissal. Porter v. Jones,
319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2), “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)).
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), “all well-pleaded allegations of material fact are taken as true and construed in a
light most favorable to the non-moving party.” Wyler Summit Partnership v. Turner

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Broadcast Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). The court does
not necessarily assume the truth of legal conclusions merely because they are cast in the
form of factual allegations in plaintiff's complaint. See Clegg v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir.1994). “However, conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a
claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also
Twombly, 550 U.S. 544. Finally, the Court may not consider any material beyond the
pleadings in ruling on a motion to dismiss under Rule 12(b)(6). See Branch v. Tunnell,
4 F.3d 449, 453 (9th Cir. 1994).

2. ANALYSIS
A. Federal and State Antitrust Claims
Dr. Zoellner alleges a variety of antitrust theories. He first asserts that St. Luke’s
conspired with Anesthesia Associates to “monopolize the provision of hospital surgical
services and the provision of anesthesiology services within a significant portion of the
Boise market . . . .” Am. Compl., Dkt. 26, ¶ 58. In addition, he alleges that St. Luke’s
conduct constitutes: (1) a conspiracy with Anesthesia Associates to foreclose him from
the market of anesthesiology providers “through an unreasonable vertical restraint on
trade restricting competition and diminishing the quality of hospital surgical services”; (2)
“an illegal boycott”; and (3) “an illegal tying arrangement.” Id., ¶¶ 63, 73, 74.

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St. Luke’s contends that none of these theories is viable because Dr. Zoellner failed to
adequately plead an antitrust injury. After reviewing the Amended Complaint, the Court
agrees Dr. Zoellner has failed to plead a plausible antitrust claim.
Dr. Zoellner’s federal antitrust claims are based on § 1 of the Sherman Act. This
section declares agreements “in restraint of trade or commerce” illegal. 15 U.S.C. § 1
(“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint
of trade or commerce among the several States, or with foreign nations is declared to be
illegal.”). Unlike the federal government, which can sue anyone who violates the
antitrust laws, private plaintiffs must “meet the requirements for ‘antitrust standing’ . . .
and to acquire ‘antitrust standing,’ a plaintiff must adequately allege and eventually prove
antitrust injury.’” Glen Holly Entm’t, Inc. v. Tektronix Inc., 352 F.3d 367, 371 (9th Cir.
2003) (citation omitted). See generally 15 U.S.C. § 15 (Section 4 of the Clayton Act;
permitting antitrust actions by private plaintiffs). Plaintiff’s state antitrust claims are
based on the Idaho Competition Act which prohibits unreasonable restraints of Idaho
commerce. Idaho Code § 48-104. Federal case law is considered to establish
unreasonable restraints of Idaho commerce. See generally, Pines Grazing Assoc., Inc. v.
Flying Joseph Ranch, LLC, 265 P. 3d 1136 (Idaho 2011).
An antitrust injury, in turn, is defined as one where the defendants’ “unlawful
conduct” injures the plaintiff in a way “the antitrust laws were designed to prevent.” Id.1
1

In Glen Holly, the Ninth Circuit articulates this part of the “antitrust injury” definition as
having four elements: “(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows
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Additionally, “the party alleging the injury must be either a consumer of the alleged
violator’s goods and services or a competitor of the alleged violator in the restrained
market.’” Id. (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489
(1977)).
In Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990), the Supreme
Court explained that “[t]he antitrust injury requirement ... ensures that a plaintiff can
recover only if the loss stems from a competition- reducing aspect or effect of the
defendant’s behavior.” Id. at 344 (emphasis added). Similarly, in Les Shockley Racing,
Inc. v. National Hot Rod Association, 884 F.2d 504 (9th Cir. 1989), Ninth Circuit
explained that antitrust “claimants must plead and prove a reduction of competition in the
market in general and not a mere injury to their own positions as competitors in the
market.” Id. at 508 (emphasis added).
The Court finds Dr. Zoellner has again failed to allege facts that plausibly show
reduced competition in the market for anesthesiology services based on his alleged forced
resignation from Anesthesia Associates. An antitrust claim cannot survive a motion to
dismiss if it fails to allege facts supporting an economic theory of harm to competition
that is “plausible in light of economic principles.” William O. Gilley Enters., Inc. v. Atl.
Richfield Co., 588 F.3d 659, 662 (9th Cir. 2009).
from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were
intended to prevent.” 325 F.3d at 372 (quoting Am. Ad Mgmt, Inc. v. Gen. Telephone Co., 190
F.3d 1051, 1055 (9th Cir. 1999)).

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To the extent Dr. Zoellner is rearguing his earlier arguments on his antitrust claim,
the Court rejects those arguments and adopts by reference it earlier analysis on the
antitrust claim set forth in its Memorandum Decision and Order, Dkt. 25.
To the extent Dr. Zoellner is claiming his new allegations satisfy his burden to
present a plausible economic theory of an antitrust violation, the Court respectfully
disagrees. Patients choose surgeons, they do not choose who their anesthesiologist is for
their surgery. Instead, the anesthesiologist group contracted to provide services to
St. Luke’s provides anesthesiologists for the scheduled surgeries at the hospital. Dr.
Zoellner’s theory that his resignation from Anesthesia Associates resulted in a “reduction
of competition” in the market in general is not supported by his allegations in his
Amended Complaint. Dr. Zoellner has failed in his obligation allege plausible facts that
would establish that his termination led to reduced competition for surgical services. The
outcome might be different if Dr. Zoellner was a surgeon being sought out by patients,
instead of one of many anesthesiologists being assigned to a surgery scheduled by another
doctor. In Fuentes v. South Hills Cardiology, 946 F.2d 196 (3rd Cir. 1991), the doctor
was able to allege his termination impacted patients seeking his services. Here, patients
“indirectly” seek the services of an anesthesiologist when their surgeon schedules a
surgery. Dr. Zoellner’s allegations do not establish any reduction in the competition for
surgical services in the market area due to his forced resignation.
Additionally, if St. Luke’s was trying to increase market share, the allegation of

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Dr. Zoellner’s resignation leading to increased prices to consumers for surgical services is
inconsistent with basic economic principles. One would expect a strategy of a reduction
in prices to capture market share, not an alleged increase in prices. Nor does Dr. Zoellner
allege that St. Luke’s prices did in fact increase to patients due to the addition of surgical
space. The fact a medical facility expands, does not establish that there was a reduction
in the competition. Basic economic principles would lead to the conclusion that
expansion of facilities would increase, not decrease, competition for medical services.
Mere speculation without correlation to the alleged antitrust harm is insufficient to
establish the economic plausibility necessary to proceed with the antitrust claim in this
case. Dr. Zoellner’s argument that due to his forced resignation there was a reduction in
surgical competition generally is not supported by the allegations in his Amended
Complaint.
Dr. Zoellner cites the Court to two articles to support his economic theory that
consolidation of medical services is increasing costs. Dkt. 36-1 and 36-2. These articles,
while interesting, are not properly before the Court for its consideration on a motion to
dismiss which centers on the Court’s evaluation of the Amended Complaint and whether
it states a claim upon which relief can be granted. The articles are not factually
applicable to the issues in this case as they do not relate to the Idaho market at issue in
this case. Furthermore, the Court finds the articles do not specifically support Plaintiff’s
allegation that his termination (as one anesthesiologist in a group) caused a reduction in

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competition.
As to Dr. Zoellner’s renewed boycott argument, the Court again finds this theory
of recovery has not been adequately pled by Dr. Zoellner. Dr. Zoellner does not allege
that he attempted to find work with the other major competitor to St. Luke’s or anywhere
else in the Boise area. Nor does the Amended Complaint establish that St. Luke’s took
any action to prevent Dr. Zoellner from practicing elsewhere in the Boise area market.
Plaintiff’s cite to Pinhas v. Summit Health, Ltd., 894 F.2d 1024 (9th Cir. 1989) is
unpersuasive. In Pinhas, the Ninth Circuit confirmed that a plaintiff must prove more
than an injury to himself, he must prove an injury to the competition in the relevant
market. Id. at 1032. Pinhas was an eye surgeon who alleged the defendants boycotted his
attempts to provide patients with lower prices by eliminating the requirement of an
assistant during eye surgery. The Court agrees with Plaintiff that injury to competitors
may be probative of harm to competition, but in this case Dr. Zoellner did not allege that
he was prevented from providing his services at a lower prices or that his resignation was
intended to boycott anesthesiologist services from being provided to patients. The alleged
facts do not establish a boycott by St. Luke’s to find a reduction in competition for the
antitrust claim.
Moreover, as stated in the Court’s earlier Memorandum Decision and Order,
Dr. Zoellner has not alleged that St. Luke’s obtained an anti-competitive advantage in the
marketplace by forcing his resignation. Dr. Zoellner has failed to allege that

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“competition” has been injured, instead he has alleged a “competitor” (Dr. Zoellner) has
been injured by the forced resignation and this is not legally sufficient to establish an
antitrust claim. Columbia River People’s Util. Dist. v. Portland Gen. Elec., 217 F.3d
1187, 1190 (9th Cir. 2000) (citations omitted).
In keeping with the Supreme Court and Ninth Circuit precedents which generally
hold that plaintiffs must plead and prove reduced competition to make out an antitrust
injury, the Court finds Dr. Zoellner’s allegations of reduced quality of surgical services
do not equate to a reduction in competition. The Court again rejects Dr. Zoellner’s
argument that he can show antitrust injury by pointing to a decline in quality, with
nothing more. Simply put, Dr. Zoellner did not plausibly allege a market-wide decline in
the quality of services after his forced resignation.
For all these reasons, the Court finds it must dismiss Dr. Zoellner’s antitrust claims
as he has failed to sufficiently allege a viable economic theory of restraint of trade or
commerce under the § 1 of the Sherman Antitrust Act or Idaho Code § 48-104.
2. Tort Claims
a. Intentional Interference with Contract Claim
St. Luke’s moves for the dismissal of the interference with contract claim arguing
Plaintiff’s employment contract was terminable without cause; Plaintiff has not alleged a
breach of his contract; and even if a breach of contract occurred, Plaintiff can show no
damages from the breach as he signed an Employment Termination Agreement. Plaintiff

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argues St. Luke’s actions were wrongful and a breach did in fact occur due to St. Luke’s
conduct.
In Wesco Autobody Supply, Inc. v. Ernest, 243 P.3d 1069, 1083 (Idaho 2010) the
Idaho Supreme Court set forth the elements for tortious interference with contract:
(1) the existence of a contract; (2) knowledge of the contract on the part of
the defendant; (3) intentional interference causing a breach of the contract;
and (4) injury to the plaintiff resulting from the breach.
For purposes of the motion to dismiss, the Court finds Plaintiff has alleged the existence
of an Employment Contract with Anesthesia Associates, Exhibit A to Complaint, Dkt. 1.
Plaintiff has also established in its allegations that St. Luke’s knew about Dr. Zoellner’s
contract with Anesthesia Associates. Plaintiff has alleged that St. Luke’s intentionally
interfered by informing Anesthesia Associates they needed to terminate Dr. Zoellner’s
relationship. The legal question becomes did the alleged interference cause a breach of
the employment contract? Plaintiff maintains that a breach occurred due to the fact his
Employment Contract provided under Section 8 that the contract may be terminated by
either party upon the giving of ninety (90) days notice by one party to the other. Plaintiff
alleges he was told on a Sunday not to come to work on Monday and this did not
constitute ninety (90) days notice.
St. Lukes responds because Dr. Zoellner executed a release with Anesthesia
Associates, there could not have been a breach. The Plaintiff points out that the release
document signed by Dr. Zoellner is not part of the record before the Court. While it is

MEMORANDUM DECISION AND ORDER - 13

true the “Employment Termination Agreement” was not attached as an exhibit to the
Complaint or Amended Complaint, Dr. Zoellner alleges in paragraph 45 of his Amended
Complaint that he entered into such an agreement. For purposes of the motion to dismiss,
the Court does not have a copy of the Employment Termination Agreement to consider.
Regardless, the Court finds the issue of whether a breach did or did not occur is
not dispositive of the claim since the employment contract at issue was terminable
without cause. It is undisputed the express language of Section 8 of the Employment
Contract states the agreement was terminable by either party without cause. This Court
has previously held that Idaho law does not recognize a claim for tortious interference
with contractual relations where plaintiff alleges contractual interference with at-will
employees. See Idaho First Nat’l Bank v. Bliss Valley Foods, Inc., 824 P.2d 841, 861
(Idaho 1991). Rather, the proper cause of action is tortious interference with prospective
economic advantage. Id.
Because the Employment Contract at issue could have been terminated without
cause on the part of Anesthesia Associates, the fact that Anesthesia Associates decided to
terminate Dr. Zoellner, even if due to St. Luke’s alleged interference, does not give rise to
a claim for intentional interference with an employment contract and the cause of action
must be dismissed as a matter of law.

b. Intentional Interference with Prospective Economic

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Advantage Claim
St. Luke’s next argues the intentional interference with prospective economic
advantage claim must be dismissed as Plaintiff has not alleged any plausible basis upon
which the alleged conduct of St. Luke’s was wrongful if the antitrust claims are
dismissed. Plaintiff responds that “wrongful” conduct is not limited to antitrust conduct
and for purposes of the motion to dismiss this claim survives on the allegations of
Plaintiff in the Amended Complaint.
Westco also set forth the elements for a claim for interference with prospective
economic advantage:
(1) the existence of a valid economic expectancy; (2) knowledge of the
expectancy on the part of the interferer; (3) intentional interference inducing
termination of the expectancy; (4) the interference was wrongful by some
measure beyond the fact of the interference itself; and (5) resulting damage
to the plaintiff whose expectancy has been disrupted.
Westco at 1081.
The Court finds for purposes of the motion to dismiss, Plaintiff has established the
existence of a valid economic expectancy, the knowledge of such expectancy on the part
of St. Luke’s, and the alleged intentional interference with Anesthesia Associates leading
to the forced resignation of Dr. Zoellner. It is the fourth requirement of the alleged
interference being wrongful that is at issue. Plaintiff claims St. Luke’s improper motive
was independent of his antitrust law claims. Plaintiff claims “[s]acrificing patient care for
market share is an improper motive” and this is a factual dispute not suited to resolution

MEMORANDUM DECISION AND ORDER - 15

at this stage of the litigation.
Plaintiff must allege interference that “was wrongful by some measure beyond the
fact of the interference itself.” Commercial Ventures, Inv. v. Rex M. & Lynn Lea Family
Trust, 177 P.3d 955, 964 (Idaho 2008). “Wrongful means include conduct in violation of:
(1) a statute or other regulation; (2) ‘a recognized rule of common law, such as violence,
threats of intimidation, deceit[,] misrepresentation, bribery, or disparaging falsehood’,
. . . or (3) ‘an established standard of trade or profession.’” Quality Resource & Service,
Inc. v. Idaho Power Co., 706 F. Supp. 2d 1088, 1099 (D. Idaho 2010) (internal citations
omitted).
St. Luke’s maintains even if Plaintiff’s allegations are true that he was relieved as
Chief of Anesthesiology and St. Luke’s requested his termination by Anesthesia
Associates because Dr. Zoellner stated his opposition to surgery scheduling practices
based on his patient care motives and that St. Luke’s wanted to increase its market share
of the surgeries completed, this does not meet any of the above definitions of “wrongful”
conduct. The Court finds this is a question of fact that cannot be resolved in a motion to
dismiss. It is possible as Plaintiff argues that the Idaho Supreme Court did not state an all
inclusive list of wrongful conduct, but did set forth examples of what was included in
such a definition. The allegations of Plaintiff could possibly be interpreted to meet one of
these listed sources or a wrongful source not listed. The Court declines to specify or
articulate what that wrongful source is in this case as that is Plaintiff’s burden. To

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survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
674 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). The Court finds
at this stage of the litigation that the Amended Complaint arguably alleges a “plausible”
basis for wrongful interference by St. Luke’s and the motion to dismiss must be denied as
to this claim.
The Court acknowledges St. Luke’s also argues the claim should be dismissed as it
is not a “stranger” to Dr. Zoellner’s contract since it named Dr. Zoellner as Chief of
Anesthesiology. The Court finds this argument to be unpersuasive as Plaintiff alleges
St. Luke’s was not Dr. Zoellner’s employer and that St. Lukes was a third party to his
contract with Anesthesia Associates. See Beco Constr. Co. V. J-U-B Eng’rs, Inc., 184
P.3d 844, 849 (Idaho 2008).

ORDER
IT IS ORDERED:

1. Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed.
R. Civ. P. 12(b)(6) (Dkt. No. 29) is GRANTED IN PART AND DENIED IN PART.
All claims except the claim for Intentional Interference with Prospective Economic
Advantage are dismissed.

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2. Plaintiff’s Motion to Strike Portion of Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint (Dkt. 35) is DENIED.

DATED: March 31, 2013

Honorable Edward J. Lodge
U. S. District Judge

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