A-1 Packaging Solutions v. Firefly RFID Solutions et al

Filing 62

OPINION BY SUE E. MYERSCOUGH, U.S. District Judge: The Motions to Dismiss filed by Dr. William Davidson (d/e 45 ) and Defendants RFID Resolution Team Inc. d/b/a Firefly RFID Solutions, Jouko Lahepelto, and Jan Svoboda (d/e 47 ) are GRANTED IN PART and DENIED IN PART. The Court dismisses Counts IV, V and VI against Davidson and Count V against Lahepelto and Svoboda without prejudice. The following claims in the Second Amended Complaint remain: (1) Count I against Firefly; (2) Count II agains t Firefly, Davidson, and Svoboda; (3) Count III against Firefly, Lahepelto, and Svoboda; (4) Count IV against Firefly, Lahepelto, and Svoboda; (5) Count V against Firefly; (6) Count VI against Firefly, Lahepelto, and Svoboda. Defendants shall file answers to the Second Amended Complaint on or before March 12, 2019. Plaintiff shall file an answer to the remaining allegations of the Counter-Complaint (d/e 28 ) on or before March 12, 2019. SEE WRITTEN OPINION. Entered on 2/26/2019. (MJC, ilcd)

E-FILED

Wednesday, 27 February, 2019 01:51:48 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
A-1 PACKAGING SOLUTIONS, INC.,

)
)
Plaintiff,
)
)
v.
)
)
RFID RESOLUTION TEAM, INC. d/b/a )
FIREFLY RFID SOLUTIONS, a North
)
Carolina Corporation, JOUKO
)
LAHEPELTO, Individually,
)
DR. WILLIAM DAVIDSON, Individually, )
and JAN SVOBODA, Individually,
)
)
Defendants.
)
___________________________________
)
FIREFLY RFID SOLUTIONS, INC.,
)
)
Counter-Plaintiff,
)
)
v.
)
)
A-1 PACKAGING SOLUTIONS, INC.,
)
)
Counter-Defendant.
)

No. 17-CV-2205

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motions to Dismiss filed
by Dr. William Davidson (d/e 45) and RFID Resolution Team Inc.
d/b/a Firefly RFID Solutions (Firefly), Jouko Lahepelto, and Jan
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Svoboda (d/e 47).1 Defendants seek to dismiss various Counts of
the Second Amended Complaint filed by Plaintiff A-1 Packaging
Solutions, Inc. The Motions are GRANTED IN PART and DENIED
IN PART. Counts IV, V, and VI against Davidson are DISMISSED.
Count V against Lahepelto and Svoboda is DISMISSED.
I. PROCEDURAL BACKGROUND
The dispute in this case arises from an alleged agreement
between Plaintiff and Firefly for the design and installation of a
RFID (Radio Frequency Identification) Tracking System of Plaintiff’s
customer, Fiberteq, LLC, located in Danville, Illinois.
On September 15, 2017, Plaintiff filed the original complaint. On
October 5, 2017, Plaintiff filed a seven-count amended complaint.
Defendants filed motions to dismiss.
In May 2018, United States District Judge Colin S. Bruce
granted in part and denied in part the motions to dismiss. Order
(d/e 40). Specifically, the Court dismissed the tortious inference
claim brought against Davidson and the deceptive trade practices
claim as to all of the defendants. The Court also dismissed the

Although Firefly filed a Counter-Complaint against A-1 Packaging Solutions,
Inc., the Court will simply refer to the parties as “plaintiff” and “defendant(s).”
1

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quantum meruit and unjust enrichment claims because Plaintiff
expressly alleged the existence of a contract within those counts.
In June 2018, Plaintiff filed a Second Amended Complaint.
Defendants filed motions to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). On November 7, 2018, Judge Bruce
recused himself from participation in this matter, and the case was
reassigned to the undersigned judge.
II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458
(7th Cir. 2007). To state a claim for relief, a plaintiff need only
provide a short and plain statement of the claim showing he is
entitled to relief and giving the defendant fair notice of the claims.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in plaintiff’s favor. Id.
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 547 (2007). A plausible claim is one that alleges factual
content from which the Court can reasonably infer that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Merely reciting the elements of a cause
of action or supporting claims with conclusory statements is
insufficient to state a cause of action. Id.
III. FACTS ALLEGED IN THE SECOND
AMENDED COMPLAINT
The following facts come from the Second Amended
Complaint and are accepted as true at the motion to dismiss stage.
Tamayo, 526 F.3d at 1081.
Plaintiff is a corporation that selects and provides RFID
(Radio Frequency Identification) technologies from more than 170
manufacturers to provide comprehensive solutions for customers.
Fiberteq hired Plaintiff to design a custom asset and inventory
tracking system for Fiberteq’s facility in Danville, Illinois. Plaintiff
considered manufacturers of the relevant technology that would be
needed to complete the technology and reached out to potential
subcontractors and suppliers.

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Defendant Davidson, who was at that time the Chief
Technology Officer at Firefly, and Defendant Svoboda, the
President of Firefly, made numerous claims and commitments to
Plaintiff about Firefly’s experience, capabilities, and ability to
deliver products and services on a timely basis. In March 2015,
Defendant Davidson told Plaintiff that Firefly had expertise in RFID
hardware, deployments, and integration and had the capability to
build custom software for Plaintiff. In May 2015, a representative
of Plaintiff explained to Defendant Davidson that Plaintiff needed to
own the software created. Davidson agreed that Firefly would
transfer ownership rights in any software created in connection
with the Fiberteq project.
Based on Davidson’s representations, Plaintiff retained Firefly
to assist in designing an RFID system for Fiberteq. Plaintiff paid
for Firefly to provide a site assessment at Fiberteq’s facility. After
the visit, Davidson prepared a proposal for implementing a system
that Firefly represented could satisfy Fiberteq’s needs and provided
a quote of costs for the Fiberteq installation.
Firefly was responsible for selecting all solutions to be used in
the applications. Davidson proposed a solution premised upon the
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use of Convergence Systems Ltd. hardware and software.
Davidson stated that he previously used Convergence Systems Ltd.
at an installation for General Electric and affirmed that Firefly had
the technical experience to complete the project.
Plaintiff used Firefly’s quote to provide Fiberteq with a final
proposal. In early December 2015, Fiberteq awarded Plaintiff the
project to create an asset and inventory tracking system for
Fiberteq’s Danville facility. In reliance on Firefly’s representations
regarding its technical experience, capabilities, and ability to
complete the project in a timely manner, Plaintiff retained Firefly to
provide the hardware, software, installation, training, and
documentation for the Fiberteq project as Firefly previously quoted.
Fiberteq requested that the installation take place the week of
February 22, 2016. Defendant Davidson stated that Firefly could
meet this deadline. Davidson also stated Firefly needed a 50%
deposit on the hardware to start working on the project with the
remaining funds due upon completion of the project. Plaintiff paid
Firefly $47,579 on December 16, 2015.
In January 2016, Defendants Svoboda and Davidson stated
that most of the project could be done remotely after the hardware
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installation and that the installation would take approximately one
week. Multiple times in January and February 2016, Davidson
and Svoboda stated by phone that the installation would take
place the week of February 22, 2016.
On February 22, 2016, Davidson only performed a second
site assessment and did not install equipment. Over the next
several months, Firefly made numerous representations that
Firefly would start the installation but did not do so.
On May 2, 2016, Firefly asked for a second deposit. In
reliance on Firefly’s continued misrepresentations regarding
Firefly’s technical experience and ability to implement the project,
Plaintiff paid an additional $28,000.
Contrary to Firefly’s representations that it could complete
the project in three months, Firefly did not even ship parts of the
hardware until six months after receiving deposits. None of
hardware had any firmware2 in it, and it would not work when it
was received. Moreover, in July 2016, Plaintiff learned that the

“Firmware is a software program or set of instructions programmed on a
hardware device.” https://techterms.com/definition/firmware (last visited
February 26, 2019).
2

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software Firefly was supposed to create for the project had not
been started.
Contrary to the representations that Firefly had the technical
experience, expertise, and ability to complete the project, Plaintiff
learned after months of working with Firefly that no one at Firefly
knew how to deploy part of the hardware system known as the
Convergence Systems Ltd. system and make it operational.
Plaintiff then learned that Davidson’s statement that he had
installed such a system for General Electric was false.
In November 2016, Defendant Davidson said one aspect of
the project, the hoppers, was working fine, but still needed to be
tested with metal totes. In January 2017, in response to an
inquiry from Fiberteq, Firefly stated that the hoppers had not been
working since early December 2016 and that the problem had
nothing to do with metal totes. Firefly represented that it would
put an automatic restart in the software to prevent future issues of
this type. In March 2017, Firefly again found the hoppers were
down and, despite a weekend site visit from Davidson, only one of
the four hoppers was working the following Monday. Plaintiff paid

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for a third party to replace the readers and software for all four
hoppers because they were still not working.
To continue the project moving forward, Plaintiff took steps to
perform work or hire others to perform work for which Firefly was
responsible. As of May 12, 2017, the costs and expenses incurred
as a result of Firefly’s inability or refusal to provide services totaled
$395,542.38. Firefly has refused to pay Plaintiff. In addition,
Firefly has demanded additional money from Plaintiff and
threatened to withhold what it committed to deliver if Firefly were
not paid additional money. Contrary to Defendant Davidson’s
promise that Plaintiff would own the software developed by Firefly
for the Fiberteq project, Firefly demanded that Plaintiff pay
additional money to license the software.
Defendants Svoboda and Jouko Lahepelto, the Chairman of
Firefly, contacted Fiberteq in an attempt to obtain money to which
Firefly was not entitled. Further, on August 7, 2017, Firefly filed a
mechanic’s lien against Fiberteq’s property.
The Second Amended Complaint contains six counts: Count
I, against Firefly, is a claim for breach of contract; Count II, against
Firefly, Davidson, and Svoboda, is a claim for fraudulent
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inducement and fraudulent misrepresentation; Count III, against
Firefly, Lahepelto, and Svoboda, is a claim for tortious interference
with prospective business relations; Count IV, against all of the
defendants, is a claim for unfair competition; Count V, against all
of the defendants, is a claim for quantum meruit; and Count VI,
against all of the defendants, is a claim for unjust enrichment.
IV. ANALYSIS
Defendants have moved to dismiss Counts II, IV, V, and VI of
the Second Amended Complaint.
A.

Count II States a Claim for Fraudulent Inducement and
Fraudulent Misrepresentation
Defendants Firefly and Svoboda move to dismiss Count II, the

fraudulent inducement and fraudulent misrepresentation claim.3
Firefly and Svoboda argue that Plaintiff bases its claim for fraud on
the theory that Firefly and Svoboda misrepresented the time by
which they promised to complete projects. Firefly and Svoboda
assert that these statements, even if actually made, do not

The elements of a fraudulent inducement and a fraudulent misrepresentation
claim are the same. Compare Enter. Recovery Sys., Inc. v. Salmeron, 401 Ill.
App. 3d 65, 72 (2010) (fraudulent inducement) with Doe v. Dilling, 228 Ill.2d
324, 342-43 (2008) (fraudulent misrepresentation).
3

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constitute fraud because the statements are statements of future
intention.
Plaintiff responds that Defendant Davidson raised the same
argument in the first Motion to Dismiss and the Court rejected
that argument. Plaintiff asserts that, for the same reasons, the
Court should deny Defendants Firefly and Svoboda’s motion to
dismiss Count II.
The Court agrees with Plaintiff. Judge Bruce previously
refused to dismiss Count II on the ground that the representations
were promises of future performance and not actionable. Judge
Bruce held that Plaintiff pled its claim of fraudulent
misrepresentation with the particularity required by Federal Rule
of Civil Procedure 9(b). In addition, Judge Bruce, quoting
McIntosh v. Magna Sys. Inc., 539 F. Supp. 1185, 1191 (N.D. Ill.
1982), held that, at this stage of the litigation, “[t]he specific
representations underlying the . . . agreement between the parties .
. . are not presently before the [c]ourt. We cannot dismiss a cause
of action based on representations, the specific terms of which we
have not yet examined.” Opinion at 16 (d/e 40). Firefly and

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Svoboda provide no basis for deviating from that ruling. Therefore,
the motion to dismiss Count II is denied.
B.

Count IV States an Unfair Competition Claim against
Firefly, Lahepelto, and Svoboda But Not Against Davidson
In Count IV, brought against all of the defendants, Plaintiff

alleges that the defendants’ wrongful acts constitute unfair
competition under Illinois common law.
Although the common law tort of unfair competition
encompasses a broad spectrum of law, Illinois courts have not
specifically identified the elements of a common law unfair
competition claim. LG Elecs. v. Whirlpool Corp., No. 08 C 242,
2010 WL 3521785, at *2 (N.D. Ill. Sept. 1, 2010). Some courts
“have recognized that the allegations underlying a claim of tortious
interference with prospective economic advantage also suffice to
state a claim for unfair competition.” BlueStar Mgmt. v. the Annex
Club, LLC, No. 09 C 4540, 2010 WL 2802213, at *9 (N.D. Ill. July
12, 2010) (citing Zenith Elecs. Corp. v. Exzec, Inc., No. 93 C 5041,
1997 WL 223067, at *14 (N.D. Ill. Mar. 27, 1997)). Other courts
conclude that the common law unfair competition tort has been
codified by the Uniform Deceptive Trade Practices Act. LG Elec.,
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2010 WL 3521785, at *2 (citing cases); but see Custom Bus. Sys.,
Inc. v. Boise Cascade Corp., 68 Ill. App. 3d 50, 52 (1979) (noting
that “we are not inclined to dispute that there may be a cause of
action under certain aspects of the common law which are not
covered by the Uniform Deceptive Trade Practices Act”). When the
allegations are insufficient to state a cause of action for tortious
interference or deceptive trade practice, courts often find that the
same allegations are also insufficient to support an unfair
competition claim. See The Film & Tape Works, Inc. v.
JuneTwenty Films, Inc., 368 Ill. App. 3d 462, 473 (2006) (where
summary judgment was granted on the tortious inference claim,
the court disposed of the unfair competition claim without further
analysis); Custom Bus. Sys., 68 Ill. App. 3d at 53 (finding the
plaintiff did not set forth an unfair competition claim beyond the
allegations for a violation of the Uniform Deceptive Trade Practices
Act and affirming the dismissal of both claims).
In the previous order on the motions to dismiss, Judge Bruce
found that Plaintiff failed to state a Deceptive Trade Practices Act
claim in what was Count IV of the First Amended Complaint.
Order at 20-21. The Court concluded, however, that because
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Plaintiff sufficiently alleged a common law cause of action for
tortious interference with prospective business relations, Plaintiff
stated an unfair competition claim. Id. at 22. Judge Bruce’s Order
does not explain, however, why the unfair competition claim
remained against Davidson in light of the fact that the Court
dismissed the tortious interference with prospective business
relations claim against Davidson for failure to state a claim.
Defendant Davidson now moves to dismiss the unfair
competition claim on the ground that Plaintiff has not stated a
tortious interference with prospective business relations against
him. Plaintiff responds that the allegations supporting the
fraudulent inducement and fraudulent misrepresentation claim
establish facts sufficient to allege an unfair competition claim.
Resp. at 3 (d/e 49).
While the elements of an unfair competition claim are
“elusive” (Wilson v. Electro Marine Sys., Inc., 915 F.2d 1110, 1118
(7th Cir. 1990)), Plaintiff does not explain how the allegations
supporting the fraudulent inducement and fraudulent
misrepresentation claim—which pertain to alleged false statements
by Davidson to Plaintiff to induce Plaintiff to act—constitute unfair
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competition. Generally, “unfair competition claims arise where one
business takes advantage of another’s resources and quashes
competition.” Anic v. DVI Fin. Servs., Inc., No. 01 C 0383, 2001
WL 477139, at *4 (N.D. Ill. May 3, 2001). As Plaintiff states neither
a Deceptive Trade Practices Act or tortious interference with
prospective business relations claim against Davidson, the Court
dismisses the unfair competition claim against Davidson.
Defendants Firefly, Lahepelto, and Svoboda move to dismiss
Count IV for failure to state a claim because Plaintiff alleges a
claim for unfair competition without alleging trademark
infringement. Defendants assert that a claim for common law
unfair competition is generally only allowed as it pertains to a
claim of trademark infringement. Mem. at 4.
However, Defendants’ only authority for such an assertion is
AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 619
(7th Cir. 1993), which merely held that a “state unfair competition
claim is analyzed under the likelihood of confusion standard and
thus mirrors our infringement analysis.” And the Court has not
found any authority that an unfair competition claim is limited to
instances of trademark infringement. See, e.g., KJ Korea, Inc. v.
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Health Korea, Inc., 66 F. Supp. 3d 1005, 1012 (noting distinctions
between non-trademark related unfair competition and trademarkrelated unfair competition). Therefore, the Court denies the motion
to dismiss Count IV filed by Defendants Firefly, Lahepelto, and
Svoboda.
C.

Count V States a Claim in Quantum Meruit Against
Firefly But Fails to State a Claim Against Davidson,
Lahepelto, and Svoboda
All of the defendants seek to dismiss Count V, the quantum

meruit claim, asserting that Plaintiff failed to allege that Plaintiff
provided a benefit to Defendants. Davidson also argues that
Plaintiff fails to allege that Davidson accepted a benefit from
Plaintiff and that Plaintiff cannot state a claim for quantum meruit
because Plaintiff alleged the existence of a contract concerning the
same subject matter.
To state a claim for quantum meruit, a plaintiff must allege
that (1) the plaintiff performed a service to benefit the defendant;
(2) the plaintiff did not perform the service gratuitously; (3) the
defendant accepted the service; and (4) no contract existed to
prescribe payment of the service. Rubin & Norris, LLC v.
Panzarella, 2016 IL App (1st) 141315, ¶ 36. However, a party
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cannot pursue a quantum meruit claim if an enforceable express
contract exists between the parties. Barry Mogul & Assocs., Inc. v.
Terrestris Dev. Co., 267 Ill. App. 3d 742, 750 (1994). Nonetheless,
a plaintiff can plead a quantum meruit claim and a breach of
contract claim in the alternative. See DeGeer v. Gillis, 707 F.
Supp. 2d 784, 799 (N.D. Ill. 2010); Fed. R. Civ. P. 8(d)(2)-(3).
In this case, Plaintiff alleges that Plaintiff performed tasks
that Firefly had been “contracted” to perform (Sec. Am. Compl. ¶
75), that it would be unjust for Firefly to benefit from Plaintiff
completing Firefly’s “contractual obligations” (id. ¶ 78), and that
Firefly should compensate Plaintiff for Plaintiff’s work to complete
Firefly’s “contractual obligations” (id. ¶ 79). Plaintiff incorporated
by reference allegations that Plaintiff paid $47,579.50 to Firefly (id.
¶ 74 incorporating ¶ 27) and an additional $28,000 to Firefly in
reliance on Firefly’s misrepresentations regarding Firefly’s
experience and ability to implement the Fiberteq project (id. ¶ 32).
Plaintiff also alleges that Plaintiff’s efforts to complete Firefly’s
tasks prevented Fiberteq from seeking redress from Firefly directly
for Firefly’s faulty work, which benefited Firefly and its officers,
Davidson, Lahepelto, and Svoboda. (Id. ¶ 43).
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While these allegations suggest the existence of a contract,
the allegations do not necessarily suggest the existence of a
contract between Plaintiff and Firefly. Moreover, Plaintiff
specifically failed to incorporate by reference in Count V those
allegations that supported the existence of a contract between the
parties. Therefore, the Court will not dismiss Count V on the basis
that Plaintiff pleaded the existence of a contract between the
parties.
As for the argument that Plaintiff fails to allege a benefit to
Defendants, Plaintiff alleges that Plaintiff paid money to Firefly,
performed work Firefly was responsible for performing, and that
these efforts prevented Fiberteq from seeking redress against
Firefly. These facts are sufficient to allege that Plaintiff performed
a service to benefit Firefly. However, Plaintiff has not alleged any
facts to support the allegation that the individual defendants –
Davidson, Lahepelto, and Svoboda—received a benefit. The legal
conclusion that the officers of the corporation benefited from
Plaintiff’s assumption of Firefly’s tasks is insufficient. See, e.g.,
McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th
Cir. 2012) (“[A]llegations in the form of legal conclusions are
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insufficient to survive a Rule 12(b)(6) motion”). Therefore, the
claims against Davidson, Lahepelto, and Svoboda in Count V are
dismissed.
D.

Count VI States a Claim for Unjust Enrichment Against
Firefly, Lahepelto, and Svoboda But Fails to State a Claim
Against Davidson
All of the defendants move to dismiss Count VI, the unjust

enrichment claim, for failure to state a claim. Plaintiff agrees to
the dismissal of Count VI against Davidson.
Firefly, Lahepelto, and Svoboda move to dismiss Count VI on
the ground that Plaintiff alleges an express oral contract, which
precludes Plaintiff from pursuing this cause of action.
To state a claim for unjust enrichment, “a plaintiff must
allege that the defendant has unjustly retained a benefit to the
plaintiff’s detriment, and that defendant’s retention of the benefit
violates the fundamental principles of justice, equity, and good
conscience.” HPI Health Care Servs., Inc. v. Mt. Vernon Hosp.,
Inc., 131 Ill.2d 145, 160 (1989). Because unjust enrichment is
based on an implied contract, the theory does not apply where an
express oral or written contract governs the parties’ relationship.
People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill.2d 473, 497
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(1992). A plaintiff may plead breach of contract and unjust
enrichment in the alternative but cannot include allegations of an
express contract in the unjust enrichment count. Guinn v.
Hoskins Chevrolet, 361 Ill.App.3d 575, 604 (2005).
In Count VI, Plaintiff incorporated by reference allegations
that Davidson “proposed a solution that was premised on the use
of Convergency Systems Ltd. (“CSL”) hardware and software.” Sec.
Am. Compl. ¶ 80 incorporating ¶ 23. Plaintiff further alleges that
Davidson “affirmatively stated that Firefly had the technical
experience to complete the project.” Id. ¶ 32. Plaintiff paid
$47,579.50 to Firefly (id. ¶ 27) and an additional $28,000 to Firefly
in reliance on Firefly’s misrepresentations regarding Firefly’s
experience and ability to implement the Fiberteq project (id. ¶ 32).
Plaintiff alleges that Firefly received payments from Plaintiff for
work that it did not perform and received a mechanic’s lien on
Fiberteq’s property based upon allegations that money was due for
work that it did not perform. Id. ¶ 81.
As with the quantum meruit claim, while the allegations
suggest the possibility of the existence of the contract, the claim
does not necessarily allege the existence of a contract that governs
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the relationship between Plaintiff and Firefly. See Prudential Ins.
Co. of Am. v. Clark Consulting, Inc., 548 F. Supp. 2d 619, 622
(N.D. Ill. 2008) (finding the plaintiff adequately alleged the unjust
enrichment claim as an alternative to a breach of contract claim
where it could reasonably be inferred the plaintiff was pleading in
the alternative and the unjust enrichment count did not refer to or
incorporate allegations referring to the contract between the
parties). Therefore, the Court will not dismiss Count VI on the
ground raised by Defendants Firefly, Lahepelto, and Svoboda. The
claim against Davidson in Count VI is dismissed, as Plaintiff
concedes that it is appropriate to dismiss Count VI as to Davidson.
Resp. at 4 (d/e 49).
V. CONCLUSION
For the reasons stated, the Motions to Dismiss filed by Dr.
William Davidson (d/e 45) and Defendants RFID Resolution Team
Inc. d/b/a Firefly RFID Solutions, Jouko Lahepelto, and Jan
Svoboda (d/e 47) are GRANTED IN PART and DENIED IN PART.
The Court dismisses Counts IV, V and VI against Davidson and
Count V against Lahepelto and Svoboda without prejudice. The
following claims in the Second Amended Complaint remain:
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(1) Count I against Firefly
(2) Count II against Firefly, Davidson, and Svoboda
(3) Count III against Firefly, Lahepelto, and Svoboda
(4) Count IV against Firefly, Lahepelto, and Svoboda
(5) Count V against Firefly
(6) Count VI against Firefly, Lahepelto, and Svoboda
Defendants shall file answers to the Second Amended
Complaint on or before March 12, 2019. Plaintiff shall file an
answer to the remaining allegations of the Counter-Complaint (d/e
28) on or before March 12, 2019.
ENTERED: February 26, 2019
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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