Aldrich v. USA

Filing 85

ORDER DENYING 71 MOTION to Dismiss Counts X, XI, XIV, and XV of Plaintiffs' First Amended Complaint filed by Abdul Majid, Pamela Sparling, DENYING 73 MOTION to Dismiss Counts XVI & XVII of Plaintiffs' First Amended Complaint filed by Lynn Suppan. See Order for details. Signed by Judge David R. Herndon on 11/21/2018. (jer)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRY G. ALDRICH and
CINDY L. ALDRICH,
Plaintiffs,
vs.
No. 16-cv-379-DRH-RJD
UNITED STATES OF AMERICA,
SOUTHERN ILLINOIS HOSPITAL
SERVICES d/b/a SOUTHERN
ILLINOIS HEALTHCARE, et al.,
Defendants.

MEMORANDUM and ORDER
HERNDON, District Judge:
I. Introduction
Pending before the Court are two motions: (1) a motion to dismiss Counts X,
XI, XIV, and XV of Plaintiffs’ first amended complaint (“the Complaint”) (Doc. 71)
pursuant to Federal Rule 12(b)(5) submitted by Defendants Abdul Majid and
Pamela Sparling and joined by Defendant Kirby on August 6, 2018; and, (2) a
motion to dismiss Counts XVI and XVII of the Complaint (Doc. 73) pursuant to
Federal Rule 12(b)(6) submitted by Defendant Lynn Suppan on August 6, 2018. On
August 13, Plaintiffs offered a Response in Opposition (Doc. 77) to each motion to
dismiss. For the reasons set forth below, the Court DENIES both Defendants Majid,

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Sparling, and Kirby’s motion to dismiss (Doc. 71) and Defendant Suppan’s motion
to dismiss (Doc. 73).

II. Background
This matter arises from spine surgery Plaintiff Terry Aldrich underwent on
October 31, 2013. Two years later, on or about October 27, 2015, Plaintiffs filed a
lawsuit against Defendants Majid, Sparling, and Kirby (“Defendants MSK”) in
Jackson County, Illinois alleging that Defendants MSK caused or contributed to
cause the same injuries and damages Plaintiffs allegedly suffered because of the
VA’s negligence. On or about April 21, 2016, Plaintiffs sought leave to file an
amended complaint, which the state court granted. Plaintiffs’ first amended
complaint was filed on May 12, 2016 and it added as defendant Lynn Suppan,
CRNA (“Defendant Suppan”). On May 31, 2016, Plaintiffs had a summons issued
for service upon Defendants MSK and Defendant Suppan and each defendant was
served with the summons and complaint by June 8, 2016. Defendants MSK
subsequently filed a motion to dismiss arguing that Plaintiffs failed to exercise due
diligence in the serving of their complaint as required by Illinois Supreme Court
Rule 103(b) (“Rule 103(b)”). Defendant Suppan filed a motion to dismiss asserting
that Plaintiffs’ claims against her were time barred and did not relate back to the
filing of the original complaint.

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On or about March 17, 2017, the state court denied both Defendants MSK’s
motion to dismiss and Defendant Suppan’s motion to dismiss, but granted
Plaintiffs leave to file an amended complaint in response to arguments raised with
regard to the commingling of causes of action in violation of 735 ILCS 5/2-603.
Plaintiffs subsequently filed an amended complaint, which then caused Defendants
MSK and Defendant Suppan to renew their previous motions to dismiss by again
arguing that Plaintiffs failed to use due diligence in serving them and claims against
Defendant Suppan were time barred. The state court, again, denied each motion.
On October 3, 2017, Plaintiffs filed a motion for permissive joinder of parties
in this Court, which the Court granted. Defendants MSK now seek dismissal of
Counts X, XI, XII, XIII, XIV, and XV of the Complaint on the basis that Plaintiffs
failed to exercise due diligence in serving them in the state court action, as required
by Rule 103(b). Defendant Suppan seeks dismissal of Counts XVI and XVII of the
Complaint on the basis that Plaintiffs’ claims against her are time barred by the
applicable statute of limitations period and the claims do not relate back to the
filing of the original suit.
III. Applicable Law
The Federal Rules make clear that they do not apply to filings in state court.
Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001). The
Seventh Circuit has concluded that Illinois law applies to dismiss a plaintiff’s
complaint for their lack of diligence in serving it, because the action was originally

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filed in state court and the conduct in question occurred prior to removal. Id. at
1123.
Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a
claim upon which relief can be granted. Hallinan v. Fraternal Order of Police
Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atlantic Corp. v. Twombly, that Rule 12(b)(6) dismissal is
warranted if the complaint fails to set forth “enough facts to state a claim to relief
that is plausible on its face.” 550 U.S. 544, 570 (2007).
Although federal pleading standards were retooled by Twombly and Ashcroft
v. Iqbal, 556 U.S. 662 (2009), notice pleading remains all that is required in a
complaint. “A plaintiff still must provide only ‘enough detail to give the defendant
fair notice of what the claim is and the grounds upon which it rests and, through
his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.’” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
(citation omitted).
The Seventh Circuit offers further guidance on what a complaint must do to
withstand 12(b)(6) dismissal. The Court in Pugh v. Tribune Co., 521 F.3d 686, 699
(7th Cir. 2008), reiterated the standard: “[S]urviving a Rule 12(b)(6) motion
requires more than labels and conclusions;” the complaint’s allegations must “raise
a right to relief above the speculative level.” A plaintiff’s claim “must be plausible
on its face,” that is, “the complaint must establish a non-negligible probability that

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the claim is valid.” Smith v. Medical Benefit Administrators Group, Inc., 639 F.3d
277, 281 (7th Cir.2011).
IV. Analysis
Plaintiffs’ 17-count, first amended complaint alleges a Federal Torts Claim
Act claim against the United States and various medical negligence claims against
the remaining defendants. In their pending motion to dismiss (Doc. 71), Defendants
MSK argue that Counts X, XI, XII, XIII, XIV, and XV of the Complaint should be
dismissed because Plaintiffs failed to exercise due diligence in effectuating service
as required by Rule 103(b) In her pending motion to dismiss (Doc. 73), Defendant
Suppan argues that Counts XVI and XVII of the Complaint should be dismissed
because Plaintiffs’ claims against her are barred by the applicable statute of
limitations period and the claims do not relate back to the filing of the original suit.
Each motion shall be analyzed in turn.
A. Defendants’ Majid, Sparling, and Kirby’s Motion to dismiss
Defendants MSK’s motion to dismiss seeks dismissal of Counts X, XI, XII,
XIII, XIV, and XV of the Complaint on the basis that Plaintiffs failed to exercise due
diligence in serving Defendants in the state court action, as required by Rule 103(b).
The Seventh Circuit has concluded that Rule 103(b)’s requirements are an
integral part of the statute of limitation provisions in Illinois, therefore, federal
courts will apply Illinois service of process rules under certain circumstances. See
Hinkle v. Henderson, 135 F.3d 521, 522 (7th Cir. 1998); Romo v. Gulf Stream

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Coach, Inc., 250 F.3d 1119 (7th Cir. 2001); Dewey v. Farchone, 460 F.2d 1338
(7th Cir. 1972). Supreme Court Rule 103(b) provides, as follows:
(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise
reasonable diligence to obtain service on a defendant prior to the
expiration of the applicable statute of limitations, the action as to that
defendant may be dismissed without prejudice. If the failure to
exercise reasonable diligence to obtain service on a defendant occurs
after the expiration of the applicable statute of limitations, the
dismissal shall be with prejudice as to that defendant only and shall
not bar any claim against any other party based on vicarious liability
for that dismissed defendant’s conduct. The dismissal may be made
on the application of any party or on the court’s own motion. In
considering the exercise of reasonable diligence, the court shall review
the totality of circumstances, including both lack of reasonable
diligence in any previous case voluntarily dismissed or dismissed for
want of prosecution, and the exercise of reasonable diligence in
obtaining service on any case refiled under section 13-217 of the Code
of Civil Procedure.
ARTICLE II. RULES ON CIVL PROCEEDINGS IN THE TRIAL COURT,
http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_II/ArtII.htm#103
(last
visited November 2, 2018).
A plaintiff has the burden of showing reasonable diligence in serving process
following filing of a complaint. Segal v. Sacco, 136 Ill. 2d 282, 286 (1990). The
Illinois Supreme Court has instructed that the “reasonable diligence” standard is a
fact-intensive inquiry suited to balancing the following factors:
1. the length of time used to obtain service of process;
2. the activities of the plaintiff;
3. plaintiff’s knowledge of the defendant’s location;
4. the ease with which the defendant’s whereabouts could have been
ascertained;

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5. actual knowledge on the part of the defendant concerning the pendency of
the action;
6. any special circumstances affecting plaintiff’s efforts at service; and,
7. actual service on the defendant.
Long v. Elborno, 376 Ill. App. 3d 970, 979 (1st Dist. 2007).
In Case v. Galesburg Hosp., the Illinois Supreme Court noted that “[t]here is no
specific time limitation provided by Rule 103(b). Rather, a court must consider the
passage of time in relation to all the other facts and circumstances of each case
individually. 227 Ill. 2d 207 (2007). In Kreykes Electric, Inc. v. Malk and Harris,
the First District noted that “as a rule, the trial court has broad discretion in
granting or denying a motion brought under Rule 103(b), and this court will not
disturb the trial court’s ruling absent an abuse of that broad discretion.” 279 Ill.
App. 3d 936, 940 (1st Dist. 2007).
In this case, Plaintiffs filed their original complaint in state court on October
27, 2015 for alleged medical negligence during an operative procedure that was
performed on October 31, 2013. On May 31, 2016, after the applicable two-year
statute of limitations for medical negligence claims expired, Plaintiffs had a
summons issued for service upon Defendants MSK.
In their motion to dismiss, Defendants MSK argue that Plaintiffs violated
Rule 103(b) by failing to exercise reasonable diligence in effectuating service upon
them. Defendants MSK further argue that Plaintiffs’ related claims should be
dismissed with prejudice because Plaintiffs did not exercise reasonable diligence to

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obtain service on Defendants MSK after the expiration of the applicable statute of
limitations.
When determining whether a plaintiff exercised reasonable diligence, the
Illinois Supreme Court has instructed courts to balance seven factors. The present
seven-factor test used by Illinois courts to determine whether a plaintiff exercised
reasonable diligence was first articulated by the Illinois Supreme Court in Segal.
Segal, 136 Ill. 2d at 287. Importantly, in addition to outlining the factors test, the
court also noted that “[d]ismissal of a cause with prejudice under Rule 103(b) is a
harsh penalty which is justified when the delay in service of process is of a length
which denies a defendant a ‘fair opportunity to investigate the circumstances upon
which liability against [the defendant] is predicated while the facts are accessible.’”
Id. at 288 (quoting Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill. 2d
273, 289-90 (1954)). In that case, the court held that the trial court had abused its
discretion in dismissing the complaint based on a 19-week delay between filing of
the complaint and service of process. Id. at 282. The court reasoned that the
“inadvertent delay of 19 weeks did not threaten the circuit court’s ability to ‘proceed
expeditiously to a just resolution of the matter before it.’” Id. at 288 (quoting
O’Connell v. St. Francis Hospital, 112 Ill. 2d 279 (1986)). Therefore, with the above
in mind, each factor shall be analyzed in turn.
1. The length of time used to obtain service of process.
In their motion to dismiss, Defendants MSK argue that Plaintiffs failed to
exercise reasonable diligence because “service was not made on either of these

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defendants until seven months and one week after the suit was filed and after the
statute of limitations periods of time expired.” (Doc. 72, p. 8). To support their
argument, Defendants MSK cite Illinois cases 1 that presented similar periods of
time between filing of the complaint and service upon the defendant and, in each
instance, the court concluded that the plaintiff did not exercise reasonable
diligence, and related claims were dismissed. In this case, assuming the applicable
statute of limitations expired on October 31, 2015, Plaintiffs did not obtain service
of process for approximately seven months. Therefore, the first factor supports a
finding that Plaintiffs did not use reasonable diligence in effectuating service.

2. The activities of the Plaintiffs during the period prior to service being
effectuated.
In their motion to dismiss, Defendants MSK contend that “[t]here is no
evidence in this case that plaintiffs took any action after filing their suit [to]
effectuate service . . ..” (Doc. 72, p. 8). As the Illinois Supreme Court has previously
indicated, determining whether “reasonable diligence” was executed is based on
facts and circumstances. The second factor is not confined to activities related
solely to effectuating service, but rather, activities of the plaintiff during the period
between filing the complaint and service of process. In this case, the record

1

See Smith v. Menold Const., Inc., 348 Ill. App. 3d 1051 (4th Dist. 2004) (five months); Kreykes
Electric, Inc. v. Malk and Harris, 297 Ill. App. 3d 936 (1st Dist. 1998) (five months); Tischer v.
Jordan, 269 Ill. App. 3d 301 (1st Dist. 1995) (six months); Long v. Elborno, 875 314 Ill. Dec. 840
(1st Dist. 2007) (seven months).

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indicates that Plaintiff made more than minimal efforts to effectuate service by
attempting to discover and confirm the names and addresses of individuals
involved in the October 31, 2013 surgical procedure. In their memorandum in
opposition of Defendants MSK’s motion to dismiss, Plaintiffs note that “[w]hen
Plaintiffs filed their initial Complaint in October 2013 they explained, via affidavit
of their attorney and their attempt to discover the names, address and employers
of individuals involved in their October 31, 2013 operation by submitting discover
requests to Defendants SIHS and Brigham Anesthesia.” (Doc. 77-1, p. 13). As noted
by the Third District, “[t]he Rule 103(b) test is not whether the plaintiff has done
everything possible with the utmost prudence and diligence but, rather, whether
the plaintiff exercised reasonable diligence so that the delay of service did not deny
the defendant a fair opportunity to investigate the facts of the case.” Thus,
considering the record as whole, the second factor supports a finding that Plaintiffs
used reasonable diligence in effectuating service.
3. Plaintiffs’ knowledge of defendants’ location and the ease with which
defendants’ location could have been determined
In their motion to dismiss, Defendants MSK contend that Plaintiffs had
knowledge of Defendants MSK’s location because Plaintiffs were aware of
Defendants MSK’s association with Brigham Anesthesia (“Brigham”) and the
address used to ultimately serve Dr. Majid was the address for Brigham.
Additionally, Defendants MSK point to the ease in which service was completed
after issuance. As stated in their motion, “Once summons was, in fact issued (seven
months after filing the original complaint), both Dr. Majid and Pamela Sparling
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were served with the summons by Sheriff one week later, which establishes the ease
with which the defendant could be located and served.” 2 (Doc. 72, p. 9). Therefore,
based on the record, factors three and four support a finding that Plaintiff did not
use reasonable diligence in effectuating service.
4. Actual knowledge on the part of the Defendants concerning the pendency
of the action.
In their motion to dismiss, Defendants MSK acknowledge that they were
aware that Plaintiffs filed suit against them but argue that Plaintiffs still had a duty
under Rule 103(b) to exercise due diligence in service of the complaint. Under the
fifth factor, determining whether a defendant had actual knowledge of the pending
action helps determine whether a plaintiff used reasonable diligence in effectuating
service. Thus, given that Defendants MSK had actual knowledge of the pending
action, the sixth factor supports a finding that Plaintiff did use reasonable diligence
in effectuating service.
5. Any special circumstances affecting Plaintiffs’ efforts at service.
The sixth factor considers whether there are any special circumstances
affecting Plaintiffs’ efforts. In their response to Defendants’ motion to dismiss,
Plaintiffs argue that:
Plaintiff [had] been diligently working to identify the individual
healthcare providers who attended him during the October 31, 2013

2

See Tischer v. Jordan, 269 Ill. App. 3d 301, 308 (1st Dist. 1995) (“The fact that defendants were
served in January 1993 without any difficulty demonstrated that these defendants were available
and amenable to service at an earlier date, if plaintiff had exercised reasonable efforts in effecting
service.”).

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surgical procedure, and the Defendants, for the most part, have been
represented by attorneys involved in this case from the outset.
(Doc. 77, p. 5).
Additionally, Plaintiff contends that:
When Plaintiffs filed their initial Complaint in October 2013 they
explained, via the affidavit of their attorney and their attempt to
discover the names, addresses and employers of individuals involved
in the October 31, 2013 operation by submitting discovery requests to
Defendants SIHS and Brigham Anesthesia . . . Plaintiffs were taking
positive steps consistent with their obligations to exercise reasonable
diligence under the Rules.
(Doc. 77-1, p. 13).
The above evidence supports the conclusion that special circumstances
existed, and thus, the sixth factor supports a finding that Plaintiff used reasonable
diligence in effectuating service.
6. Actual service on the Defendants.
The seventh factor for determining whether there has been reasonable
diligence to effectuate service is whether a defendant was served. The record
indicates that Defendants MSK were served with the complaint and they admit that
they were aware of the pending action. Although Defendants MSK’s knowledge of
the pending action does not necessarily preclude dismissal pursuant to Rule
103(b), it is relevant when considering the record. See Polites v. U.S. Bank
National Ass’n, Ill. App. 3d 76, 86 (1st Dist. 2005) (the fact that a defendant “had
notice of the lawsuit before being served did not preclude dismissal under Rule
103(b)”).

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After reviewing all the factors and considering the totality of the
circumstances, the Court finds that Plaintiffs exercised reasonable diligence in
effectuating service on Defendants MSK. Defendants MSK’s motion to dismiss
seeking dismissal of Counts X, XI, XII, XIII, XIV, and XV of the Complaint is denied.
B. Defendant Suppan’s Motion to dismiss
Defendant Suppan’s motion to dismiss seeks dismissal of Counts XVI and
XVII of the Complaint (Doc. 73) pursuant to Federal Rule 12(b)(6). Specifically,
Defendant Suppan argues that Counts XVI and XVII of the Complaint should be
dismissed because Plaintiffs’ claims against her are barred by the applicable statute
of limitations period and the claims do not relate back to the filing of the original
suit.
Plaintiffs’ added Defendant Suppan in the state court action after the statute
of limitations period expired. Under such circumstances, the Seventh Circuit has
concluded that state procedural rules apply. Romo v. Gulf Stream Coach, Inc., 250
F.3d 1119, 1121(7th Cir. 2001) ([F]ederal courts may apply state procedural rules
to pre-removal conduct.”). Accordingly, 735 ILCS 5/2-616(d) is applicable to
Defendant Suppan’s motion.
Under Section 2-616(d), a plaintiff must satisfy three conditions before the
claims against a newly named defendant will be found to relate back to the filing of
the original complaint:
1. the time prescribed or limited had not expired when the original action
was commenced;

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2. the person, within the time that the action might have been brought or the
right asserted against him or her plus the time for service permitted under
Supreme Court rule 103(b), received such notice of the commencement
of the action that the person will not be prejudiced in maintaining a
defense on the merits and knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have
been brought against him or her; and,
3. it appears from the original and amended pleadings that the cause of
action asserted in the amended pleading grew out of the same transaction
or occurrence set up in the original pleading . . ..
735 ILCS 5/2-616(d).
In this case, Defendant Suppan concede that Plaintiffs have satisfied the first
and third conditions of Section 2-616(d) but argue that Plaintiffs have failed to
satisfy the second condition because she did not have any notice of the suit prior to
the time she was served with the first amended complaint. (Doc. 74, p. 7).
Illinois courts have found that Section 2-616(d) is similar to the requirements
of Federal Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure and, therefore,
have considered federal law when interpreting its provisions. See Zlatev v. Millette,
2015 IL App (1st) 143173, ¶ 24; Compton v. Ubilluz, 351 Ill. App. 3d 223 (2d Dist.
2004). In Polites v. U.S. Bank Nat’l Assoc., the Court found that:
Federal courts have decided three types of notice comply with Federal
Rule of Civil Procedure 15(c): (1) actual notice received by the party
(Singletary v. Pennsylvania Department of Corrections, 266 F.3d
186, 195 (3d Cir.2001)); (2) actual notice received by the party's agent
(Peterson v. Sealed Air Corp., 902 F.2d 1232, 1237 (7th Cir.1990));
or (3) constructive notice (Singletary, 266 F.3d at 195–96).
Polites v. U.S. Bank Nat’l Assoc., 361 Ill. App. 3d 76, 88 (1st Dist. 2005).
Under federal law, there are three ways to establish constructive notice:

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(1) notice via sharing an attorney with the original defendant
(Singletary, 266 F.3d at 196); (2) notice via an identity of interest with
the original defendant (Singletary, 266 F.3d at 197–98); or (3) notice
via someone who handles the would-be defendant's insurance claims
(Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1401 (9th
Cir.1984); Smith v. TW Services, Inc., 142 F.R.D. 144, 148
(M.D.Tenn.1991)).
Id. at 90-91.
The first two theories of constructive notice are relevant to the facts of this case,
and thus, warrant analysis. In Singletary v. Pennsylvania Dep’t of Corr., the Third
Circuit noted that the “shared attorney” method of imputing notice is based on the
notion that, “when an originally named party and the party who is sought to be
added are represented by the same attorney, the attorney is likely to have
communicated to the latter party that he may very well be joined in the action.” 266
F.3d 186, 196 (3d Cir. 2001). The court further noted that “the fundamental issue
here is whether the attorney's later relationship with the newly named defendant
gives rise to the inference that the attorney, within the 120-day period, had some
communication or relationship with, and thus gave notice of the action to, the newly
named defendant.” Id. at 196-97.
In her motion to dismiss, Defendant Suppan argues that she cannot be found
to have had constructive notice of the suit via the “shared attorney” theory because
“she did not have any contact or communications with the attorneys representing
Brigham prior to the time she was served the first amended domplaint. (Doc. 74,
p. 9). Defendant Suppan supports the above assertion through a signed affidavit
which affirms that she did not have any communication with the attorneys

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representing Brigham. Thus, given the record, imputing constructive notice onto
Defendant Suppan through the “shared attorney” theory fails.
The second way to establish constructive notice is by establishing an identity
of interest with the prospective defendant and the original defendant. In Alyala v.
Lebron Gonzalez, the First Circuit affirmed the district court’s finding of an identity
of interest between a prospective prison guard defendant and prison officials named
in the original complaint. The court reasoned that the originally named defendants
were the prison guard’s superiors and the prison guard was present during the
attack. 909 F.2d 8 (1st Cir. 1990). In Jacobsen v. Osborne, the Fifth Circuit held
that the newly named defendants received constructive notice because:
[T]he City Attorney, who represented the original City defendants (the
City and Officer Osborne) . . . would necessarily have represented the
newly-named officers. The City Attorney answered the complaint on
behalf of the City and Officer Osborne, and to do so, presumably
investigated the allegations, thus giving the newly-named officers the
[Rule 15(c)(3)] notice of the action.
133 F.3d 315, 320 (5th Cir. 1998).
In Singletary, the Third Circuit held that the prospective defendant did not share
an identity of interest with the original defendant because “Regan was a staff level
employee at SCI-Rockview with no administrative or supervisory duties at the
prison. Thus, Regan’s position at SCI Rockview cannot alone serve as a basis for
finding an identity of interest . . ..” Singletary, 266 F.3d at 199.
Defendant Suppan urges the Court to follow Singletary by finding there is no
identity of interest between Defendant Suppan and Brigham Anesthesia because
she was not a managerial employee of Brigham. While Defendant Suppan was not
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a managerial employee of Brigham, the circumstances present in Ayala Serrano
and Jacobsen that were the bases for the findings of identity of interest in those
cases are present in this case. Similarly, Defendant Suppan was employed at
Brigham on October 31, 2013, presumably present during the surgical procedure
at issue, and represented by the same attorney as three originally named
defendants. Therefore, the Court finds there is a sufficient identity of interest
between Defendant Suppan and Brigham so that notice given to Brigham can be
imputed to Defendant Suppan for Section 2-616(d) purposes.
V. Conclusion
In sum, the Court concludes that Defendants Majid, Sparling, Kirby, and
Suppan
failed to make a sufficient showing that Counts X, XI, XII, XIII, XIV, XV, XVI, and
XVII should be dismissed.
Accordingly, the Court DENIES both Defendants MSK’s motion to dismiss
(Doc. 71) and Defendant Suppan’s motion to dismiss (Doc. 73).
SO ORDERED.

Judge Herndon
2018.11.21
15:44:22 -06'00'
UNITED STATES DISTRICT JUDGE

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