Hess et al v. Biomet, Inc. et al

Filing 47

OPINION AND ORDER granting in part and denying in part 18 Motion to Dismiss. Signed by Judge Rudy Lozano on 2/16/17. (ksp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES HESS, MARTY HIGGINS,
ROBERT “GLEN” MCCORMICK, RONALD
PAPA, FRANK SHERA and AL
TORNQUIST

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Plaintiffs,
vs.
BIOMET, INC. and ZIMMER BIOMET
HOLDINGS, INC.
Defendants.

NO. 3:16–CV-208

OPINION AND ORDER
This matter is before the Court on Defendant Biomet, Inc.,
and Zimmer Biomet Holdings, Inc.’s Motion to Dismiss (DE #18),
filed

on

May

26,

2016.

For

the

reasons

set

forth

below,

Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN
PART.

Counts II, III, V, and VI are DISMISSED.

Counts I and IV

remain pending.
BACKGROUND
Plaintiffs Charles Hess, Marty Higgins, Robert McCormick,
Ronald Papa, Frank Shera and Al Tornquist (together, "Plaintiffs")
were each successful sales representatives with the medical device
company Zimmer Holdings Inc. ("Zimmer") by 1980.

(DE #1, ¶14.)

Defendant Biomet, Inc. ("Biomet") is a medical device company that
competed with Zimmer.

(Id.)

Between 1980 and 1983, Biomet

allegedly enticed Plaintiffs to leave Zimmer and join Biomet by
-1‐ 

offering them agreements that included a retirement-income program
in the form of lifetime commissions on all products sold in their
sales territories.

(Id.)

Upon Plaintiffs’ retirements from

Biomet, Biomet paid them commissions on products sold in their
former

territories.

(Id.,

¶¶16-17.)

Plaintiffs

recently

discovered that those commission payments were based on some, but
not all, Biomet products sold in those territories.

(Id. ¶18.)

In 2015, Biomet and Zimmer merged, and became Defendant Zimmer
Biomet Holdings, Inc. ("Zimmer Biomet").

(Id., ¶19.)

Since the

merger, Zimmer Biomet has allegedly repudiated its obligations to
Plaintiffs under the agreements.

(Id.)

The Complaint alleges six causes of action against Biomet and
Zimmer Biomet (together, “Defendants”):

(1) breach of contract

for failing to pay Plaintiffs commissions on all Biomet products
sold in their former territories; (2) breach of contract and
implied covenant of good faith and fair dealing for spinning-off,
re-branding,

substituting

and

otherwise

discontinuing

Biomet

products; (3) breach of contract and implied covenant of good faith
and

fair

dealing

against

Zimmer

Biomet

for

failing

to

pay

Plaintiffs commissions on all products sold by Biomet or Zimmer
Biomet in their former territories; (4) violations of Indiana Code
sections 34-24-3-1 and 35-43-5-3 for knowingly or intentionally
making false or misleading commission statements with the intent
to underpay Plaintiffs; (5) theories of de facto merger, mere
-2‐ 

continuation, alter ego, and piercing the corporate veil; and (6)
declaratory judgment.

Defendants move to dismiss the Complaint in

its entirety.
DISCUSSION
Facts
Plaintiffs are former sales representatives of Zimmer.

(DE

#1, ¶14.) Between 1980 and 1983, Biomet offered each of Plaintiffs
an

exclusive

distributorship

agreement

("Distributorship

Agreements") to leave Zimmer and work for Biomet.

(Id.)

The

Distributorship Agreements included a promise of a retirementincome program in the form of lifetime commissions on all products
sold in Plaintiffs’ sales territories.
Biomet’s

offer,

Biomet’s

success

and
in

their

(Id.)

contributions

growing

into

a

musculoskeletal healthcare industry.

Plaintiffs accepted

were

instrumental

dominant

player

(See id., ¶15.)

1996 and 2005, Plaintiffs retired from Biomet.

in

in
the

Between

(Id., ¶16.)

Upon

retirement, Plaintiffs each signed agreements terminating their
distributorships and acknowledging the survival and continuation
of

their

retirement-income

program

established

under

the

Distributorship Agreements, and its applicability to Biomet’s
successors and assigns ("Termination Agreements").

(Id.)

The

Distributorship Agreements and Termination Agreements (together,
"Agreements") allegedly entitle Plaintiffs to be paid a retirement

-3‐ 

commission on all Biomet products sold in their former territories.
(Id., ¶¶17, 37.)1
Following

Plaintiffs’

retirement,

Biomet

paid

Plaintiffs

retirement commissions, and sent them semi-monthly payments along
with statements purporting to show the commissions owed.
¶¶17, 42-46.)

(Id.,

These statements originally set forth a single

dollar amount showing the total commission payment; years later,
the

statements

included

some

additional

information.

(Id.)

Plaintiffs allege that they did not know, and could not tell from
these statements, that the commission payments failed to pay them
for all Biomet product sales from their former territories.

(Id.,

¶¶43, 44.) Plaintiffs relied on the accuracy and comprehensiveness
of

this

information,

believing

that

Biomet

was

honoring

its

obligation under the Agreements by properly calculating and paying
their retirement commissions.
“recently”

discovered

that

(Id., ¶¶ 17, 40.)

Biomet

had

only

been

Plaintiffs
paying

them

commissions on its joint reconstructive products, rather than all
of its products, and that Biomet allegedly had been concealing the

1

  Plaintiffs

did not attach copies of the Agreements to the
Complaint, citing the Agreements’ confidentiality provisions. (DE
#1, ¶16 n.1.)
After Defendants filed the instant motion to
dismiss, the parties stipulated to the public filing of the
Agreements.
(DE #22 at 11 n.2; DE #22-12.)
Plaintiffs filed
copies of the Agreements in opposition to the motion.
(See DE
##22-1 - 22-11.)
-4‐ 

underpayments
statements.

through

misleading

and

incomplete

commission

(Id., ¶¶18, 39-41.)

On June 24, 2015, Biomet and Zimmer merged, and became Zimmer
Biomet.

(Id., ¶58.)

Zimmer Biomet holds itself out to the public

as the combination of Zimmer and Biomet, and is controlled and
directed by a management team drawn from senior executives from
Zimmer and Biomet.

(Id., ¶¶22, 58-78.)

Post-merger, Biomet and

Zimmer Biomet allegedly spun off, re-branded, or discontinued
Biomet products in favor of substitute Zimmer or Zimmer Biomet
products,

thereby

reducing

commissions are paid.

the

(Id., ¶21.)

Biomet

products

on

which

Plaintiffs believe they have

only been paid commissions on a subset of Biomet’s total product
line, and no commissions on the Zimmer or Zimmer Biomet product
lines.

(Id., ¶48.)

Motion to Dismiss Standard
In evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must “accept all facts alleged in
the complaint as true and draw all reasonable inferences in the
light most favorable to the plaintiff.” Parish v. City of Elkhart,
614 F.3d 677, 679 (7th Cir. 2010) (citation omitted).

While a

complaint is not required to contain detailed factual allegations,
the plaintiff must allege facts that “state a claim to relief that
is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
-5‐ 

“[A] plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions.”

Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007) (citations 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 (even if doubtful in fact).”

Id. (citations omitted).

“[E]ven with the heightened pleading requirements of Iqbal and
Twombly, the pleading requirements to survive a challenge to a
motion to dismiss remain low.”

Diedrich v. Ocwen Loan Servicing,

LLC, 839 F.3d 583, 589 (7th Cir. 2016).
Count I – Breach of Contract Claim
Count I alleges that Defendants breached the Agreements by
“fail[ing] to pay [Plaintiffs] a commission on all Biomet products
sold in their respective territories as required by the terms of
the retirement-income program.”

(DE #1, ¶96.)

To recover for

breach of contract under Indiana law, a plaintiff must prove that
“(1) a contract existed, (2) the defendant breached the contract,
and

(3)

the

plaintiff

defendant’s breach.”

suffered

damage

as

a

result

of

the

Duncan v. Greater Brownsburg Chamber of

Commerce, Inc., 967 N.E.2d 55, 57 (Ind. Ct. App. 2012) (citation
omitted).

Count I alleges that: (1) Plaintiffs and Defendants

were parties to the Agreements, which provided for payment of
lifetime commissions on all Biomet products sold in the relevant
-6‐ 

territories (id., ¶89-92); (2) Defendants violated the Agreements
by failing to pay Plaintiffs commissions on all Biomet products
sold in those territories (id., ¶96); and (3) as a result of those
violations, Plaintiffs suffered damages in the amount of unpaid
commissions (id., ¶¶101-105).

Accepting the facts as alleged in

the Complaint as true, and drawing all reasonable inferences in
Plaintiffs’ favor, Count I sufficiently alleges facts stating a
plausible breach of contract claim.
Defendants
plausibility.

do

not

dispute

whether

Count

I

has

facial

Rather, they contend that Count I must be dismissed

because Plaintiffs allegedly conceded that Biomet had honored its
obligations under the Agreements in a letter dated July 20, 2015,
from Plaintiffs’ counsel to Zimmer Biomet (“July 2015 Letter”).
The July 2015 Letter was not attached as an exhibit to the
Complaint.

Nonetheless, Defendants maintain that the Court may

consider the July 2015 Letter because the Complaint references and
quotes from the letter.

Defendants filed a copy of the July 2015

Letter as an exhibit to their motion to dismiss.

(DE #19-1.)

“In

general, a court may only consider the plaintiff’s complaint when
ruling on a Rule 12(b)(6) motion.”
LLC,

714

F.3d

501,

505

(7th

Burke v. 401 N. Wabash Venture,

Cir.

2013)

(citation

omitted).

However, “documents attached to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to his claim.”
-7‐ 

Id. (citations omitted).

The court may consider such documents in ruling on a motion to
dismiss without converting the motion into a motion for summary
judgment.

Id.

While the Complaint refers to and quotes from the July 2015
Letter (DE #1, ¶¶52-53), it does not appear to be central to
Plaintiffs’ claims.

The Complaint alleges that, prior to the

merger, Biomet proposed buyout offers to Plaintiffs in return for
terminating

their

Agreements.

(Id.,

¶¶39,

50.)

Plaintiffs

rejected these offers, and hired counsel to negotiate a compromise
with Defendants.

(Id., ¶52.)

Plaintiffs’ counsel sent the July

2015 Letter to Zimmer Biomet, noting Zimmer Biomet’s continuing
obligation

to

pay

Plaintiff

the

amounts

due

them

under

the

Agreements, and proposed potential resolutions to the parties’
conflicting positions.

(Id.)

In response, Zimmer Biomet declined

further buyout negotiations and maintained that the Agreements do
not extend to non-Biomet products.

(Id., ¶54.)

The Complaint

references the July 2015 Letter and other correspondence between
the parties to “establish[] that a current, justiciable dispute
exists between [Plaintiffs], Biomet, and Zimmer Biomet regarding
their respective rights and obligations under the Agreements.”
(Id., ¶57.)
Even if the July 2015 Letter is central to Plaintiffs’ claims,
Plaintiffs argue that the July 2015 Letter, which is marked “Offer
of Compromise and Settlement pursuant to Rule 408 of the Rules of
-8‐ 

Evidence,” is inadmissible because it was prepared as part of
settlement discussions with Defendants.
evidence

regarding

“a

statement

Rule 408 provides that

made

during

compromise

negotiations about the claim” “is not admissible – on behalf of
any party – either to prove or disprove the validity or amount of
a disputed claim.”

Fed. R. Evid. 408; see United States v. Dish

Network, L.L.C., No. 09-3073, 2015 WL 9164665, at *2 (C.D. Ill.
Dec. 16, 2015) (“Rule 408 promotes settlement by encouraging frank
discussions during settlements negotiations without fear that the
statements would be used against the party later during the
proceeding.”).

Defendants contend that Rule 408 does not apply

because the July 2015 Letter was merely a response to Biomet’s
proposed buyout of future obligations under the Agreements.

They

maintain that no actionable dispute existed when the July 2015
Letter was written and no offer of compromise was made. Defendants
also insist that Plaintiffs “opened the door” for the Court’s
consideration of the July 2015 Letter by pleading its existence
and

quoting

it

in

the

Complaint.

They

rely

upon

case

law

addressing motions for summary judgment to assert that “[w]hen a
party

opens

the

door

to

evidence

that

would

be

otherwise

inadmissible, that party cannot complain on appeal about the
admission of that evidence.

And when a party puts evidence at

issue, that party must accept the consequence[s] of opening the
door to that evidence.”

United States v. Dish Network, L.L.C., 75
-9‐ 

F. Supp. 3d 942, 971 (C.D. Ill. 2014), vacated in part on other
grounds on recons., 80 F. Supp. 3d 917 (C.D. Ill. 2015) (quoting
Estate of Escobedo v. Martin, 702 F.3d 388, 400 (7th Cir. 2012)
(citations omitted)) (rejecting argument that settlement material
was inadmissible under Rule 408 where arguing party had cited the
material first).
“Rule 408 is an evidentiary rule, which is best addressed in
context of admissibility of evidence at trial.”

PTR, Inc. v.

Forsythe Racing, Inc., No. 08 C 5517, 2009 WL 1606970, at *4 (N.D.
Ill. June 9, 2009) (denying motion to strike complaint allegations
based on Rule 408 as premature, and allowing defendants to file
motion in limine if case is presented to jury); see Brandy v. Maxim
Healthcare Servs., Inc., No. 2:12 CV 192, 2012 WL 5268365, at *2
(N.D. Ind. Oct. 23, 2012) (denying motion to strike pleading based
on Rule 408 because “it is too early to determine what evidence
would be used and whether it would be barred by Rule 408”).

The

Court finds that whether Rule 408 applies to the July 2015 Letter
is premature at this stage of the litigation.

See Abercrombie &

Fitch Co. v. Fed. Ins. Co., No. 2:06-CV-831, 2008 WL 656029, at *5
(S.D. Ohio Mar. 11, 2008) (denying motion to dismiss, explaining
“whether

Rule

408

applies

to

[plaintiff’s]

determined at the pleading stage of this case”).

claim

cannot

be

The possibility

that Rule 408 precludes Defendants from offering evidence to
disprove Count I is inappropriate for the Court to consider in the
-10‐ 

context of this Rule 12(b)(6) motion.

“Whether this evidence is

admissible as relevant, probative and permissible, is a decision
that can only be made in a legal and factual context, which cannot
be

determined

from

the

pleadings

standing

alone.”

Id.2

Defendants’ motion to dismiss Count I is DENIED.
Counts II and III
Defendants move to dismiss Counts II and III.

Count II

alleges that Defendants “breached the Agreements and the implied
covenant of good faith and fair dealing by spinning off, rebranding, substituting and otherwise discontinuing Biomet-branded
products, in favor of substantially similar, if not functionally
identical, product lines bearing a Zimmer and/or Zimmer Biomet
brand, and by failing to pay [Plaintiffs] a commission on such
Zimmer or Zimmer Biomet branded products.”

(DE #1, ¶113.)

Count

III alleges that Zimmer Biomet “breached the Agreements and the
implied covenant of good faith and fair dealing by failing to pay
[Plaintiffs] commissions on all products sold by Biomet or Zimmer
Biomet in [Plaintiffs’] former territories, regardless of whether
such products are branded as Biomet, Zimmer, or Zimmer Biomet

2
  Even if the Court were to consider the July 2015 Letter, the

Complaint includes allegations which, when considered in the light
most favorable to Plaintiffs, reasonably infer that the July 2015
Letter was written before Plaintiffs discovered that Biomet had
been underpaying Plaintiffs in violation of the Agreements. (See
DE #1, ¶¶39-41 (alleging Plaintiffs only recently discovered
Biomet’s failure to pay commissions on all of its products as a
result of discussions with Biomet’s counsel in 2015).)
-11‐ 

products.”

(Id., ¶123.)

Defendants argue that Counts II and III

should be dismissed because they do not plead valid claims for
breach of duty of good faith under Indiana law. Plaintiffs respond
that Counts II and III allege a duty of good faith as a subset of
their breach of contract claims, not as separate causes of action.
Defendants maintain that Counts II and III do not state breach
of contract claims because they do not allege that Defendants
failed to perform any obligation under the Agreements, but rather,
rely on an implied covenant of good faith and fair dealing as the
basis

of

the

alleged

breach.

See

Decatur

Ventures,

LLC

v.

Stapleton Ventures, Inc., 373 F. Supp. 2d 829, 847 (S.D. Ind. 2005)
(dismissing breach of contract claim where plaintiffs did not
allege breach of contractual term, but rather, “something akin to
breach of the duty to act in good faith and in accordance with
reasonable standards of fair dealing”); Perfect Flowers, Inc. v.
Teleflora LLC, No. 1:10-CV-1031, 2012 WL 2994636, at *3 (S.D. Ind.
July 20, 2012) (dismissing breach of contract claim, rejecting
plaintiff’s contention that “although no specific provision of the
contract was breached, Defendant breached its obligation of good
faith and fair dealing by exceeding the scope of the contract”).
Count II alleges that Defendants spun off, re-branded, substituted
and otherwise discontinued Biomet products.
does

not

identify

any

contractual

-12‐ 

But the Complaint

obligation

that

Defendants

allegedly breached by doing so.

Thus, Count II does not state a

breach of contract claim.
Count III alleges that Zimmer Biomet failed to pay Plaintiffs
commissions on all products sold by Biomet or Zimmer Biomet,
regardless of whether they were branded as Biomet, Zimmer, or
Zimmer Biomet.

Defendants argue that this claim does not plead

that the parties intended the retirement commissions on Biomet
products to include Zimmer and Zimmer Biomet products. See Fellows
v. Bd. of Trustees of Welborn Clinic, 63 F. Supp. 2d 942, 944 (S.D.
Ind. 1998) (“The primary and overriding purpose when interpreting
a written contract is to give effect to the parties’ mutual intent
at the time the contract is written.”).
cite

allegations

supporting

their

In response, Plaintiffs

entitlement

to

retirement

commissions for products sold by Zimmer Biomet: (1) the Termination
Agreements expressly provide that the retirement income program
“would be binding on Biomet, and its respective successors and
assigns” (DE #1, ¶35); (2) Zimmer and Biomet merged, resulting in
a single combined company, and under Indiana law, Zimmer Biomet
succeeds to all liabilities of Biomet; and (3) Zimmer Biomet’s
liability is based on the doctrines of de facto merger, mere
continuation, alter ego, and piercing the corporate veil.
¶¶22, 58-78.)

(Id.,

These Complaint allegations, coupled with Count

III’s allegation that the Agreements “provide for payment of a
lifetime commission on all Biomet products sold in the relevant
-13‐ 

territories” (id., ¶¶120-21), state a breach of contract claim
against Zimmer Biomet for its alleged failure to pay Plaintiffs
commissions on all Biomet products sold in the relevant territories
after the merger.

See Ind. Code § 23-1-40-6(a)(3) (“When a merger

takes effect . . . the surviving corporation has all liabilities
of each corporation party to the merger”).
Plaintiffs insist that whether the parties intended for the
Agreements to apply to Zimmer and Zimmer Biomet products is a factintensive issue that is inappropriate for resolution under a Rule
12(b)(6) motion.

They rely on Zimmer US Inc. v. Mire, 188 F. Supp.

3d 843 (N.D. Ind. 2016), in which the court denied a motion to
dismiss a breach of contract claim where the word “assigned” was
not defined in the agreement, and the resolution of “whether a
specific territory was ‘assigned’ to Mire . . . would involve an
assessment of evidence . . . to determine the parties’ intent when
they signed the agreement.”

Id. at 851.

Here, the Complaint does

not allege any ambiguous language in the Agreements.

Count III

alleges that the Agreements provided for commission payments “on
all Biomet products sold in the relevant territories.”
¶120

(emphasis

added).)

The

Complaint

alleges

(DE# 1,
that

the

Distributorship Agreements “provide a retirement-income program
that would pay a lifetime commission on all Biomet products sold
in the relevant territory,” and that “the program would be paid on
a percentage of ‘net sales’” that “appl[ies] to Biomet’s entire
-14‐ 

product line without limitations of any type.”
(emphasis

added);

see

id.,

¶37

(“The

(Id., ¶¶34, 36

Agreements

entitle

[Plaintiffs] to be paid a commission based upon the sales of all
Biomet

products

added).)

within

their

former

territories.”)

(emphasis

Because the Complaint does not allege a contractual

obligation for Zimmer Biomet to pay Plaintiffs a commission on any
products other than Biomet products, Count III only states a breach
of contract claim relating to Biomet products.
Plaintiffs contend that even if they had pleaded a breach of
an implied covenant of good faith and fair dealing as a separate
cause of action, dismissal of Counts II and III is not warranted.
“Indiana law does not impose a generalized duty of good faith and
fair dealing on every contract; the recognition of an implied
covenant

is

generally

insurance contracts.”

limited

to

employment

contracts

and

Old Nat. Bank v. Kelly, 31 N.E.3d 522, 531

(Ind. Ct. App. 2015) (citing Allison v. Union Hosp., Inc., 883
N.E.2d 113, 123 (Ind. Ct. App. 2008)).

The Court of Appeals of

Indiana has noted that there is “no absolute restriction” of a
duty of good faith and fair dealing to employment and insurance
contracts,

and

has

discerned

“no

crucial

difference

between

insurance companies and banks, as each—from a superior vantage
point—offer customers contracts of adhesion.”
531.

Kelly, 31 N.E.3d at

Plaintiffs rely on Kelly to argue that Defendants had a

“superior vantage point” because they have exclusive control of
-15‐ 

their product sales and the calculation and reporting of the
retirement commissions for those sales.

But the Complaint does

not allege that Defendants had a superior vantage point when the
parties entered into the Agreements, or that the parties entered
into any contracts of adhesion.3

Rather, the Complaint alleges

that Plaintiffs were “highly successful sales representative[s],”
and that “Biomet struggled to sell medical devices” and “needed an
incentive

that

would

convince

these

highly-successful

sales

representatives to take a risk on a fledgling firm like Biomet.”
(DE# 1, ¶¶ 14, 23, 25.)

As such, this argument is unpersuasive.

Plaintiffs also argue that if a contract is ambiguous, the
courts will impose a duty of good faith and fair dealing.
Allison, 883 N.E.2d at 123.

See

“A contract is ambiguous if a

reasonable person would find the contract subject to more than one
interpretation.”

Citimortgage, Inc. v. Barabas, 975 N.E.2d 805,

813 (Ind. 2012) (citation omitted).
Agreements

are

differently.

ambiguous

because

Plaintiffs assert that the
the

parties

interpret

them

But “the fact that the parties disagree over the

meaning of the contract does not, in and of itself, establish an
ambiguity.”

Claire's

Boutiques,

Inc.

v.

Brownsburg

Station

3

  Adhesion contracts are “standardized contracts, which, imposed
and drafted by a party of superior bargaining strength, relegate
subscribing parties only the opportunity to adhere to the contract
or reject it.” John M. Abbott, LLC v. Lake City Bank, 14 N.E.3d
53, 58 n.2 (Ind. Ct. App. 2014).

-16‐ 

Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013) (citation
omitted).

Plaintiffs point to no allegations in the Complaint

indicating that the Agreements are ambiguous, and the Court has
found none.

Courts applying Indiana law have refused to find an

independent cause of action for breach of a duty of good faith and
fair dealing in similar circumstances:
Based on Indiana’s reluctance to extend this duty to
unambiguous non-insurance and non-employment contracts,
the general limitation to employment and insurance
contracts, and the lack of allegations in the pleadings
that the contracts were ambiguous, the Court determines
that claims for breach of covenant and implied covenant
of good faith and fair dealing are not viable under the
unambiguous [] agreements that were freely entered into
by the parties.
7E Fit Spa Licensing Grp. LLC v. 7EFS of Highlands Ranch, LLC, No.
115CV01109, 2016 WL 4761562, at *10 (S.D. Ind. Sept. 13, 2016)
(dismissing such claims); see Hamilton v. Wells Fargo Bank, N.A.,
No. 09-04152 CW, 2010 WL 1460253, at *3 (N.D. Cal. Apr. 12, 2010)
(dismissing breach of covenant of good faith and fair dealing claim
where plaintiff had not shown contract was ambiguous or pertained
to employment or insurance matters) (applying Indiana law).

Even

if the Agreements are found to be ambiguous, the duty of good faith
and fair dealing would only help the Court interpret the contracts,
rather than support an independent cause of action.

See Ball v.

Versar, Inc., No. IP01-0531, 2002 WL 33964449, at *7 (S.D. Ind.
Sept. 6, 2002)  (dismissing breach of duty of good faith and fair
dealing claim, noting that “even if a contractual ambiguity is
-17‐ 

identified later in the case, so that the court might turn to an
implied duty of good faith and fair dealing to help interpret the
contract, that still would not support an independent tort claim”);
ArcAngelo, Inc. v. Directbuy, Inc., No. 3:13CV104, 2013 WL 6095678,
at *4 & n.1 (N.D. Ind. Nov. 20, 2013) (similar) (citing First
Federal Savings Bank of Indiana v. Key Markets, Inc., 559 N.E.2d
600 (Ind. 1990)).

For these reasons, neither Count II nor Count

III state a claim for breach of an implied covenant of good faith
and fair dealing.
For the reasons provided above, Count II does not state a
claim for breach of contract, and therefore is DISMISSED.

Count

III does not state a breach of contract claim for failing to pay
commissions on sales of Zimmer products or Zimmer Biomet products.
While Count III does state a breach of contract claim against
Zimmer Biomet for failing to pay commissions on sales of all Biomet
products, Count I alleges the same claim.

(See DE #1, ¶¶95-96

(alleging breach of contract claim against Zimmer Biomet and Biomet
for failing to pay Plaintiffs commissions on all Biomet products
sold in their respective territories).)

Because the only claim

remaining in Count III is duplicative of Count I, the Court in its
discretion DISMISSES Count III in its entirety.4

4
 In a footnote, Defendants assert that Counts II and III should be

dismissed with respect to Plaintiff Frank Shera (“Shera”) because
his Termination Agreement defines “Products” as “orthopedic
products offered for sale by Biomet under the Biomet trademark,”
-18‐ 

Count IV
Count IV asserts a deception claim against Defendants under
the Indiana Crime Victims Relief Act (“CVRA”).
section

35-43-5-3

provides

that

a

person

who

Indiana Code
“knowingly

or

intentionally makes a false or misleading written statement with
intent to obtain property” commits criminal deception.
§ 35-43-5-3(a)(2).

Ind. Code

Under the CVRA, one who suffers a pecuniary

loss due to a violation of Section 35-43, including criminal
deception, may recover treble damages, costs and attorney’s fees.
See Ind. Code § 34-24-3-1(1)-(3).
plaintiff

must

prove

the

elements

preponderance of the evidence.

To recover under the CVRA, a
of

the

criminal

act

by

a

See Larson v. Karagan, 979 N.E.2d

655, 661 (Ind. Ct. App. 2012); French-Tex Cleaners, Inc. v. Cafaro
Co., 893 N.E.2d 1156, 1166 (Ind. Ct. App. 2008).
Defendants argue that Count IV must be dismissed because the
alleged deception is really a breach of contract claim.

“Recovery

under the [CVRA] is not based on a breach of contract, but must be

and states that “Products sold by Biomet’s subsidiary corporations
are not included within the meaning of ‘Products’ used herein.”
(DE #19 at 13 n.5.) Plaintiffs respond that these provisions were
taken out of context from Shera’s Termination Agreement, and do
not apply to the commissions at issue, but rather, to a particular
customer account with which Shera was to be involved after his
retirement.
Defendants do not address Plaintiffs’ response in
their reply brief. Their silence leads the Court to conclude that
Defendants concede this argument. See Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 466 (7th Cir. 2010) (“silence leaves us to conclude”
a concession; “[f]ailure to respond to an argument . . . results
in waiver”).
-19‐ 

predicated on an independent tort.”

State Grp. Indus. (USA) Ltd.

v. Murphy & Assocs. Indus. Servs., Inc., 878 N.E.2d 475, 480 (Ind.
Ct. App. 2007); see JPMCC 2006-CIBC14 Eads Parkway, LLC v. DBL
Axel, LLC, 977 N.E.2d 354, 364 (Ind. Ct. App. 2012) (“Where the
source of a party’s duty to another arises from a contract, tort
law should not interfere.”).

Defendants maintain that because

Count IV rests on allegations that they broke a promise to pay
Plaintiffs commissions on all Biomet products sold in Plaintiffs’
former territories, it merely repackages Plaintiffs’ breach of
contract claims as a deception claim.

See Dunlap v. Switchboard

Apparatus, Inc., No. 1:12-CV-0020-TWP-DKL, 2012 WL 1712554, at *10
(S.D. Ind. May 15, 2012) (dismissing CVRA conversion claim that
was “little more than a repackaged version of the breach of
contract claim, presumably brought to up the ante by raising the
specter of treble damages”) (internal quotations and citation
omitted).

Count IV alleges that:

Biomet has systemically underpaid [Plaintiffs] for many
years . . . and has concealed these underpayments through
false or misleading commission statements.
Since the
merger,
Defendants
have
continued
to
underpay
[Plaintiffs] and have continued to conceal these
underpayments through false or misleading commission
statements. . . .
These statements were designed to
actively conceal these underpayments and mislead
[Plaintiffs] by paying them on only a subset of Biomet
products, despite a plain contractual obligation to pay
[Plaintiffs] on all Biomet products.

-20‐ 

(DE #1, ¶128 (emphasis added).)
Count

IV

is

related

to

Thus, the deception alleged in

Defendants’

alleged

failure

to

pay

Plaintiffs commissions in breach of the Agreements.
Plaintiffs

argue

that

Defendants

engaged

in

conduct

prohibited by the CVRA that is separate from their breach of the
Agreements.

According to Plaintiffs, their breach of contract

claim concerns Defendants’ alleged failure to pay commissions owed
under the Agreements, while Count IV concerns Defendants’ alleged
false

and

misleading

allegations

that

commission

Defendants

statements.

provided

They

commission

point

to

statements

“contain[ing] no substantive information beyond the total amount
of commission to be paid” (DE #1, ¶42), that Plaintiffs “did not
know, and could not tell from the statements . . . that this
commission payment failed to pay [Plaintiffs] for all Biomet
product sales from their former territories” (id., ¶43), and that
Defendants designed the statements “to actively conceal these
underpayments and mislead [Plaintiffs] by paying them on only a
subset of Biomet products,” and gained illicit proceeds by doing
so (id., ¶128).
deception

was

Plaintiffs maintain that Defendants’ alleged

not

simply

underpaying

Plaintiffs,

but

rather,

issuing false and misleading commission statements in order to
underpay Plaintiffs.
Plaintiffs

rely

upon

Indiana

case

law

that

has

allowed

recovery under the CVRA notwithstanding that the CVRA claim was
-21‐ 

related to an alleged breach of contract.

See, e.g., Longhi v.

Mazzoni, 914 N.E.2d 834, 846 (Ind. Ct. App. 2009)(affirming treble
damages award for deception where defendant failed to return
earnest deposit in breach of a contract to build a house); Larson,
979

N.E.2d

conversion

at

658,

where

661

(affirming

defendant

treble

breached

damages

oral

award

contract

for
for

commissions); State Grp. Indus., 878 N.E.2d at 478 (remanding to
determine damages under CVRA where trial court found breach of
contract and knowing submission of false or misleading invoices).
While none of these opinions address the issue of whether the CVRA
claim was merely a repackaged version of a breach of contract
claim, they demonstrate that Indiana courts are not averse to
allowing recovery for CRVA claims that relate to a breach of
contract.

Defendants argue that unlike Plaintiffs’ cited case

law, Count IV is based on the parties’ disagreement over the
contract interpretation, i.e., the scope of commissions to which
Plaintiffs are entitled under the Agreements.

But Defendants do

not cite, and the Court was unable to find, case law granting a
motion to dismiss where the CVRA claim was based on the parties’
disagreement over the interpretation of a contract.
Defendants maintain that Plaintiffs seek “to elevate the
disagreement over contract interpretation into actionable conduct
solely because Defendants sent commissions statements that reflect
the amount Defendants believe is due to Plaintiffs under the
-22‐ 

contracts.”

(DE #29 at 9.)

They insist that “the Indiana

legislature did not intend to criminalize bona fide contract
disputes.”

French-Tex Cleaners, 893 N.E.2d at 1168.

In support,

they rely upon cases that applied the summary judgment standard of
review and considered evidence in dismissing tort claims.

See id.

at 1167-68 (affirming summary judgment on conversion claim where
there was “not a material issue of fact” regarding whether alleged
tortfeasor had requisite mens rea to support conversion claim,
rather, he “acted in accordance with a reasonable interpretation
of the ambiguous contract”); T-3 Martinsville, LLC v. US Holding,
LLC, 911 N.E.2d 100, 121 (Ind. Ct. App. 2009) (affirming summary
judgment

on

deception

claim

where

there

was

“absolutely

no

evidence” that alleged tortfeasor “made any false or misleading
written statement . . . with the intent to obtain property”); DBL
Axel, 977 N.E.2d at 365 (affirming summary judgment on conversion
claim,

among

other

tort

claims,

where

evidence

“d[id]

not

demonstrate the degree of culpability necessary to establish any
of the Tort Claims”); Tobin v. Ruman, 819 N.E.2d 78, 86 (Ind. Ct.
App. 2004) (affirming summary judgment on fraud claim where “our
review of the designated evidence reveals that Tobin’s fraud claim
is, in fact, merely a repackaged version of his breach of contract
claim”).

As Plaintiffs note, the summary judgment standard of

review differs from the Rule 12(b)(6) standard the Court is to
apply here.

The purpose of a Rule 12(b)(6) motion to dismiss is
-23‐ 

“to test the sufficiency of the complaint, not to decide the
merits.”
1990).

Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
This standard requires the Court to accept as true all

well pled facts alleged by Plaintiffs and draw all permissible
inferences in their favor.

See Parish, 614 F.3d at 679.

A claim’s

“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”

Twombly, 550 U.S. at 555.

In Sheridan Health Care Center, Inc. v. Centennial Healthcare
Corp., No. IP01-0186CMS, 2001 WL 1029111 (S.D. Ind. June 19, 2001),
the court denied a motion to dismiss a CVRA conversion claim and
rejected the argument that the claim was simply one for breach of
contract.

Id. at *6.

In doing so, the court relied on Indiana

case law that did not find the existence of a contract between the
parties to be dispositive, but instead, looked to evidence of the
individual elements of a conversion claim to reach a decision.
Id. (citing Gilliana v. Paniaguas, 708 N.E.2d 895 (Ind. Ct. App.
1999), and NationsCredit Commercial v. Grauel Enter., 703 N.E.2d
1072 (Ind. Ct. App. 1998)).

“[T]he [Indiana] courts stressed that

unlike the ‘innocent breach of contract’ action, in a civil
conversion action, the party alleging the civil conversion must
prove the criminal intent element.”

Id. (citations omitted); see

French-Tex Cleaners, 893 N.E.2d at 1167 (“It is this mens rea
requirement that differentiates criminal conversion from a more
innocent breach of contract or failure to pay a debt, which
-24‐ 

situations the criminal conversion statute was not intended to
cover.”).

The Sheridan court denied the motion to dismiss the

conversion claim because the plaintiff had adequately alleged its
elements,

including

intentionally.”

that

the

defendant

acted

“knowingly

or

2001 WL 1029111 at *6.5

To state a CVRA claim based on criminal deception, Plaintiffs
must allege that Defendants knowingly or intentionally made a false
or misleading written statement with intent to obtain property,
and that Plaintiffs suffered a loss as a result.
24–3–1,

35-43-5-3(a)(a).6

While

Defendants

Ind. Code §§ 34–
contend

that

the

commission statements reflect the amount they believe is due to
Plaintiffs under the Agreements, this is not alleged in the
Complaint.

Rather, Count IV alleges that “Defendants knowingly or

intentionally made false or misleading written statements (each
commission statements provided to [Plaintiffs]) with the intent to
obtain property” and “reaped millions of dollars in proceeds,

5

 Plaintiffs also rely upon Koger v. T & C, Inc., 9 N.E.3d 259 (Ind.
Ct. App. Mar. 18, 2014) (Table), in support of their argument. As
noted by Defendants, Koger was an unpublished memorandum decision.
An unpublished memorandum decision of the Court of Appeals of
Indiana “shall not be cited to any court except by the parties to
the case to establish res judicata, collateral estoppel, or law of
the case.” Ind. R. App. P. 65(D).
6

“A person engages in conduct ‘knowingly’ if, when he engages in
the conduct, he is aware of a high probability that he is doing
so.”
Ind. Code § 35-41-2-2(b).
“A person engages in conduct
‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a).
-25‐ 

otherwise intended for the retirement of [Plaintiffs], by using
these commission statements in the manner they did.”
¶¶127-28.)

(DE #1,

Drawing all permissible inferences in Plaintiffs’

favor, Count IV does not allege an innocent breach of contract,
but rather, alleges that Defendants knowingly or intentionally
made

false

or

misleading

written

commission

statements

to

Plaintiffs in order to underpay them. Cf. Dunlap, 2012 WL 1712554,
at *9-*10 (dismissing conversion claim that merely alleged that
“Defendants failed to pay the amounts owed, and failed to provide
Plaintiffs the promised stock ownership” because it was “little
more than a repackaged version” of breach of contact claim).
Defendants also argue that Count IV should be dismissed
because the only pecuniary losses alleged in Count IV are the same
losses alleged in Plaintiffs’ breach of contract claims.

They

cite Epperly v. Johnson, 734 N.E.2d 1066 (Ind. Ct. App. 2000), in
which the court reversed a punitive damages award based on a fraud
claim where “[t]he misrepresentation did not result in injury
distinct from that resulting from the breach [of contract], and it
thus is not independently actionable as fraud.”

Id. at 1073.

Defendants also rely upon Fritzinger v. Angie's List, Inc., No.
1:12-CV-01118-JMS, 2013 WL 772864, *3 (S.D. Ind. Feb. 28, 2013),
in which the court dismissed CVRA claims that failed to allege an
independent tort and a separate distinct injury.

-26‐ 

Plaintiffs do not deny that the Complaint alleges the same
injury for their breach of contract and deception claims.

Rather,

they maintain that the independent injury requirement does not
extend to CVRA claims.

Epperly did not address a CVRA claim, but

rather, addressed a fraud claim.

And while Fritzinger dismissed

CVRA claims that failed to allege a distinct injury, the court had
also found that the CVRA claims failed to allege an independent
tort.

Here, in contrast, Count IV alleges an independent tort.

Plaintiffs also cite Indiana cases in which the damages claim and
amount were the same for the breach of contract and CVRA claims.
See, e.g., Larson, 979 N.E.2d at 662 (same damages for CVRA
conversion claim and breach of oral contract for commissions);
Longhi, 914 N.E.2d at 846 (same damages for CVRA deception claim
and breach of contract to build house).

Given the Indiana case

law awarding damages under the CVRA where plaintiffs sought the
same damages for breach of contract, the Court declines to dismiss
Count IV based solely on the lack of an alleged independent injury.
Defendants argue that Count IV does not satisfy the heightened
pleading requirements of Federal Rules of Civil Procedure Rule
9(b).

Rule 9(b) requires that a party “state with particularity

the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). “[A]
plaintiff ordinarily must describe the ‘who, what, when, where,
and how’ of the fraud.”

Pirelli Armstrong Tire Corp. Retiree Med.

Benefits Trust v. Walgreen Co., 631 F.3d 436, 441–42 (7th Cir.
-27‐ 

2011) (citation omitted).

Courts apply the heightened pleading

standard of Rule 9(b) to claims of criminal deception.

See e.g.,

Heartland Recreational Veh., LLC v. Forest River, Inc., No. 3:08CV-490ASCAN, 2009 WL 1085837, at *4 (N.D. Ind. Apr. 22, 2009).
Defendants contend that Count IV fails to satisfy Rule 9(b)
because it offers no degree of particularity, and merely refers to
earlier paragraphs in the Complaint.

The Court disagrees.

Count

IV explicitly incorporates the prior allegations of the Complaint.
(DE #1, ¶126.)
Defendants’

The Complaint provides representative examples of

allegedly

misleading

commission

statements,

and

alleges that Plaintiffs did not know, and could not tell from the
statements, that Defendants failed to pay them commissions for all
Biomet product sales from their former territories.

(Id., ¶¶42-

46.) It further alleges that Defendants knowingly or intentionally
made these false or misleading commission statements, and procured
proceeds intended for Plaintiffs by doing so.

(Id., ¶¶127-28.)

The Complaint alleges that Defendants (the who) concealed their
underpayment of Plaintiffs’ retirement commissions (the what) by
sending fraudulent or misleading commission statements (the how)
to Plaintiffs (the where, reasonably inferred to be Plaintiffs’
states of citizenship) on a monthly or semi-monthly basis from the
inception of their retirement-income payments (the when).
1-6, 11, 17, 42-47, 127-28.)

(Id. ¶¶

As such, Count IV states a claim for

relief under the heightened Rule 9(b) motion to dismiss standard.
-28‐ 

Count V
Defendants argue that Count V should be dismissed because it
asserts a theory of recovery rather than a standalone claim. Count
V alleges that the transaction resulting in the formation of Zimmer
Biomet was a merger, or alternatively, a de facto merger, and that
Zimmer Biomet is responsible for the liabilities of Biomet as a
result of the de factor merger.

(DE #1, ¶134.)

It also alleges

that Zimmer Biomet is a “mere continuation” of Biomet (id., ¶135),
that Biomet and Zimmer Biomet are operated as a single entity,
whereby Biomet serves as the alter ego of Zimmer Biomet (id.,
¶136), and that “[t]here is such unity of interest and ownership
between Zimmer Biomet and Biomet that the interests of Zimmer
Biomet and Biomet are inseparable, and the adherence to a fiction
of separate entities would sanction fraud or promote injustice”
toward Plaintiffs such that “the Court should pierce the corporate
veil and hold that Zimmer Biomet is legally obligated to honor the
terms of the Agreements” (id., ¶¶138-39).

Defendants argue that

Count V should be dismissed because “[p]iercing the corporate veil
is not an independent cause of action, nor a separate claim.”
United States v. ARG Corp., No. 3:10-CV-00311-PPS, 2014 WL 88928,
at *2 (N.D. Ind. Jan. 7, 2014) (citing Reed v. Reid, 980 N.E.2d
277, 301 (Ind. 2012)).
Plaintiffs respond that the cases cited by Defendants ruled
in favor of the parties asserting claims for piercing the corporate
-29‐ 

veil.

In Reed, the plaintiff sought to impose liability on other

corporate entities allegedly owned or controlled by a defendant,
and advanced “several theories” in support of these claims.

980

N.E.2d at 297; see id. at 299-301 (addressing de facto merger,
mere continuation, and piercing the corporate veil).
Court

of

Indiana

explained

that

“[t]hese

theories

The Supreme
create

no

independent causes of action, but ‘merely furnish[] a means for a
complainant to reach a second corporation or individual upon a
cause of action that otherwise would have existed only against the
first corporation.”

Reed, 980 N.E.2d at 297-98 (quoting 1 William

Meade Fletcher, Fletcher Cyc. of the Law of Corp. § 41.10 at 136
(perm. ed. rev. vol. 2006)).

In a footnote, the court noted that

the plaintiff had made “a separate claim to pierce the corporate
veil.”

Id. at 298 n.16.

The court affirmed the denial of summary

judgment of that claim, explaining that “[p]iercing the corporate
veil involves a highly fact-sensitive inquiry that is not typically
appropriate for summary disposition.”
In

ARG

Corporation,

the

Id. at 303.

plaintiff

sought

to

amend

the

complaint to seek recovery under a piercing the corporate veil
theory of liability.

2014 WL 88928, at *2.

The amended complaint

asserted a single claim for the recovery of certain costs, but
added allegations that a defendant had abused the corporate form,
and so should be held liable for the costs under the corporate
veil-piercing doctrine.

Id.

The defendants moved to dismiss,
-30‐ 

arguing that the amendment was barred by the statute of limitations
and failed to state a claim for piercing the corporate veil.

Id.

The court rejected the defendant’s statute of limitation argument
because the original complaint stated the same claim against the
defendant for recovery of costs; the amended complaint “simply
added a new theory of recovery.”

Id.

The court explained that

“[p]iercing the corporate veil is not an independent cause of
action, nor a separate claim.”
301).

Id. (citing Reed, 980 N.E.2d at

“It is a remedy, a ‘means of imposing liability on an

underlying cause of action such as a tort or breach of contract.’”
Id. (quoting 1 Fletcher Cyc. Corp. § 41.10 at 136).

The court

then considered the plaintiff’s allegations, and found that they
“sufficiently alleged a claim for piercing the corporate veil.”
Id. at *3.
The Court agrees with Defendants that piercing the corporate
veil is not an independent cause of action in Indiana.

Reed’s

footnote mentioning the existence of a separate veil-piercing
claim is not sufficient to counter the Supreme Court of Indiana’s
admonition that theories imposing liability on other corporate
entities allegedly owned or controlled by a defendant “create no
independent causes of action.”

980 N.E.2d at 297.

therefore GRANTS Defendants’ motion to dismiss Count V.

The Court
However,

the Court notes that these theories are alleged elsewhere in the
Complaint, albeit in a more cursory manner.
-31‐ 

For example, Count I

alleges that Zimmer Biomet is responsible for the underpayment of
retirement commissions to Plaintiffs “under the doctrines of ‘de
facto merger,’ ‘mere continuation,’ ‘alter ego,’ and/or ‘piercing
the corporate veil.’”

(DE #1, ¶90; see id., ¶¶58-78 (alleging

facts to support these theories of recovery).)

As such, these

theories remain pending in this litigation.
Count VI
Finally, Count VI seeks a declaratory judgment that: (1)
Plaintiffs are entitled to retirement commission income on all
Biomet

products

sold

in

their

respective

territories;

(2)

Plaintiffs are entitled to retirement commission income on all
Biomet,

Zimmer,

and/or

Zimmer

Biomet

products

sold

in

their

respective territories since the merger; and (3) Zimmer Biomet is
liable for Biomet’s obligations pursuant to the merger and under
the doctrines of de facto merger, mere continuation, alter ego,
and piecing the corporate veil.

(DE #1, ¶143.)

Defendants argue

that Count VI is based solely on the Plaintiffs’ other theories of
liability, and therefore is duplicative.

“When declaratory relief

and

similar,

another

exercise
claim.”
713,

its

remedy

are

discretion

substantially
to

dismiss

the

the

court

declaratory

may

judgment

The Pantry, Inc. v. Stop-N-Go Foods, Inc., 777 F. Supp.

717

(S.D.

Ind.

1991)

(citation

omitted)

(dismissing

declaratory judgment claim where the claim “is inappropriately
raised because the plaintiff may be fully compensated if it
-32‐ 

prevails on the breach of contract claim”); see Lansing v. Carroll,
868

F.

Supp.

2d

753,

763–64

(N.D.

Ill.

2012)

(“Because

the

declaratory judgment claim (Count I) fails to add anything not
already raised in the breach of contract claim (Count II), in an
exercise

of

its

discretion

the

court

dismisses

Count

I.”).

Plaintiffs respond that they properly pled facts to support the
three claims for declaratory judgment in Count VI, and that the
Court cannot determine the parties’ rights and obligations at
dismissal stage.

They do not assert that their declaratory

judgment claim differs in any way from other claims raised in the
Complaint.
A

review

of

the

Complaint

demonstrates

that

Count

VI

essentially seeks the same relief sought in Counts I (breach of
contract), III (breach of contract), and V (piercing the corporate
veil). As explained above, the only viable claim for relief stated
in Count III is duplicative of Count I.

While Count V does not

allege an independent cause of action, the theories asserted in
Count V are also alleged in Count I, and thus, remain pending.

As

such, the declaratory judgment claim does not state a viable claim
for relief that is not already raised in Count I.

Because Count

VI fails to add any viable claim for relief not already raised in
Count I, the Court in an exercise of its discretion DISMISSES Count
VI.

-33‐ 

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss
(DE# 18) is GRANTED IN PART and DENIED IN PART.
V, and VI are DISMISSED.

DATED:

February 16, 2017

Counts I and IV remain pending.

/s/ RUDY LOZANO, Judge
United States District Court

-34‐ 

Counts II, III,