Foreign Candy Company, Inc v. Promotion in Motion, Inc

Filing 29

ORDER denying 9 Motion to Dismiss. See text of Order. Signed by Senior Judge Donald E OBrien on 6/20/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
FOREIGN CANDY COMPANY, INC.,
Plaintiff,

No. 12-CV-4107-DEO

vs.

ORDER ON DEFENDANT’S MOTION
TO DISMISS

PROMOTION IN MOTION, INC.,
Defendant.

__________________
Presently before the Court is Defendant, Promotion In
Motion, Inc.’s [hereinafter the Defendant], Motion to Dismiss.
Docket No. 9. The parties appeared telephonically for hearing
on March 26, 2013. After listening to the parties’ arguments,
the Court took the matters under consideration and now enters
the following.
I.

BACKGROUND
At this early stage of the case, few facts are before the

Court.

However, the following background is relevant to the

present Motion to Dismiss:
This case involves two, competing candy companies.
Plaintiff,

Foreign

Candy

Company,

Inc.

[hereinafter

The
the

Plaintiff], a corporation headquartered in this district, “is
engaged

in

the

business

of

importing,

distributing,

and

selling candy products throughout the United States...”
Docket No. 14, p. 2.
candy industry.
[the

Plaintiff]

It “is a leader and an innovator in the

By virtue of the significant investment that
makes

in

branding

its

products,

[the

Plaintiff] has gained significant recognition in the minds of
consumers throughout the United States and abroad as a source
of quality candy products.”

Id.

Similarly, the Defendant is

a “leading candy manufacturer and marketer located in New
Jersey.”

Docket No. 9, Att. #1, p. 1.

In its capacity as a candy marketer, the Defendant owns
the rights to (what it says is a popular) sour watermelon
candy, known as Sour Jacks.

[Hereinafter the Defendant’s

watermelon candy will be referred to as SJC.]

From the

parties filings, it is unclear how long SJC has been on the
market, although it seems undisputed that SJC predated any
watermelon candy made by the Plaintiff.
Around September 2012, the Plaintiff introduced a sour
watermelon candy into the local and national marketplace,
called

Upnext

Gummies.

[Hereinafter

the

Plaintiff’s

watermelon candy will be referred to as the UNG.]

According

to the Plaintiff, it invested significant time and resources
2

in brining UNG to the market.

As is demonstrated by the

exhibits, there is, at the least, some superficial similarity
between SJC and UNG.
Sometime in 2012, the Defendant became aware of UNG’s
existence. The Defendant responded to the existence of UNG by
sending a cease and desist letter to the Plaintiff at its
headquarters, located in this district, on November 12, 2012.
See Docket No. 14, Ex. A.

In short, the letter set out the

Defendant’s

SJC,

history

with

stated

that

the

Defendant

believes that UNG unfairly infringes SJC’s trademark, and
concluded that the Defendant may be entitled to legal recourse
if the Plaintiff went forward with UNG.
Shortly there after, on November 28, 2012, the Plaintiff
filed the present suit in this Court.

See Docket No. 1.

In

its Complaint, the Plaintiff “sees a Declaratory Judgment of
non-infringement and other equitable relief and compensatory
damages arising from Defendant’s conduct.”

Docket No. 1, p.

1.
As will be discussed in greater detail below, the current
fighting issue is whether this Court has personal jurisdiction

3

over the Defendant.

Pursuant to that dispute, the following

facts are relevant:
It seems that both the Plaintiff and the Defendant have
sold some of their products in the other’s home state.
However, while the Defendant’s SJC has been sold in Iowa, this
case arose before the Plaintiff had the opportunity to sell
UNG in New Jersey.

1

Additional facts and allegations will be

discussed below.
II.

ISSUES
The Defendant’s Motion to Dismiss raises two primary

issues.

The

first

is

that

jurisdiction over the Defendant.

this

Court

lacks

personal

Specifically, the Defendant

argues the Court does not have specific personal jurisdiction
because none of the events giving rise to the Complaint
1

According to its brief, less than 1% of the
Defendant’s business is done in Iowa. Docket No. 9, p. 9.
The Plaintiff argues that the 1% of business that the
Defendant does in Iowa actually shows that when compared with
population, the Defendant does as much business in Iowa as it
does anywhere in the U.S. because Iowa’s population is also
slightly less than 1% of the total U.S. population. Docket
No. 14, p. 3-4. Additionally, the Defendant admits that it
has a single employee stationed in Iowa. Docket No. 9, p. 9.
The Defendant asserts that the employee is a national sales
director. However, the Plaintiff states that the Defendant’s
Iowa based employee lives and works out of Sioux City, and
calls on Iowa based convenience type stores.
4

occurred in Iowa, and the Court does not have general personal
jurisdiction because it did not have continuous and systematic
contacts with this jurisdiction.
Second, the Defendant argues that the case should be
dismissed,

because

anticipatory

the

declaratory

Plaintiff’s
judgment

Complaint

action,

filed

is

an

for

the

express purpose of depriving the Defendant of its choice,
home, forum.

Specifically, the Defendant argues that the

Plaintiff filed this case shortly after receiving a cease and
desist letter from the Defendant that alerted the Plaintiff to
the impending litigation.
The court will consider each of these issues in turn.
III.

STANDARD
An

action

may

be

dismissed

for

lack

of

personal

jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2).

2

The party asserting jurisdiction has the burden to

make a prima facia showing that jurisdiction is proper.
Viasystems, Inc. v. EBM-Papst St. Georgen GMBH & Co., KG, 646
2

“Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is
required. But a party may assert the following defenses by
motion... lack of personal jurisdiction...” Fed. R. Civ. P.
12(b).
5

F.3d

589

(8th

Cir.

2011).

A

court

considering

whether

jurisdiction is proper must view the evidence then available
in a light most favorable to the party asserting jurisdiction
and resolve all factual conflicts in favor of that party.
Goss

Graphic

Systems,

Inc.

v.

Man

Roland

Druckmaschinen

Aktiengesellschaft, 139 F. Supp. 2d 1040 (N.D. Iowa 2001)
(citing Dakota Industries, Inc. v. Dakota Sportswear, Inc.,
946 F. 2d 1384, 1387 (8th Cir. 1991)).
IV.

ANALYSIS
A. Personal Jurisdiction
The Defendant first argues that this Court has neither

general

nor

specific

Plaintiff’s claim.

personal

jurisdiction

over

the

The Supreme Court has recognized the

existence of two types of jurisdiction: specific and general.
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414-15 (1984).

Specific jurisdiction refers to the

exercise of "personal jurisdiction over a defendant in a suit
arising out of or related to the defendant's contacts with the
forum." Id. at 414, fn. 8. General jurisdiction occurs when,
though the suit does not arise out of a defendant's contacts
with the forum, the defendant's independent contacts with the
6

forum are so "continuous and systematic" that the exercise of
jurisdiction
omitted).

remains

justified.

Id.

at

415

(citations

Thus, the distinction between specific and general

jurisdiction is a recognition that fairness requires more or
less contacts with a forum depending on whether the conduct of
the defendant at issue is part of the purported basis for
jurisdiction.
The first question a court must take up when considering
jurisdiction is the extent of the forum State’s long-arm
statute.
forum

In order for a court to exercise jurisdiction, the

State’s

grounds.

long-arm

statute

must

provide

sufficient

See Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th

Cir. 2004). If jurisdiction is proper under the forum state’s
long-arm statute, the exercise of jurisdiction must still
comport with a defendant’s constitutional due process rights.
Id.
Iowa Rule of Civil Procedure 1.306 provides for personal
jurisdiction over a defendant to the full extent of the
Constitution.

Med-Tec, Inc. v. Kostich, 980 F. Supp. 1315

(N.D. of Iowa 1997).

Thus, the question becomes whether

forcing the Defendant to defend itself in this Court, located
7

in

the

Northern

District

of

Iowa,

would

violate

its

constitutional due process rights.
Due process requires that a defendant “have certain
minimum contacts with” a forum “such that the maintenance of
the suit does not offend ‘traditional notions of fair play and
substantial justice.’”

International Shoe Co. v. State of

Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v.
Meyer, 311 U.S. 457, 463 (1940)).

Minimum contacts are

contacts, ties or relations with a forum State such that a
defendant “should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
299 (1980).

Traditional notions of fair play and substantial

justice refer to the reasonableness of requiring a defendant
“to defend a particular suit” in the forum in which it is
brought.

Id.

at

292

(citing

326

U.S.

at

292).

A

determination of whether the exercise of jurisdiction is
ultimately

reasonable

requires

a

court

to

consider

the

defendant’s burden of defending in the forum State, as well
as:
the forum State’s interest in adjudicating
the dispute . . . the plaintiff’s interest
in obtaining convenient and effective
relief . . . the interstate judicial
8

system’s interest in obtaining the most
efficient resolution of controversies; and
the shared interest of the several States
in
furthering
fundamental
substantive
social policies . . . .
Id.

(internal citations omitted).
In interpreting the due process case law, the Eighth

Circuit has identified five factors to be considered when
determining whether an exercise of jurisdiction comports with
constitutional Due Process:
(1) the nature and quality of the
[defendant’s] contacts with the forum
state;
(2)
the
quantity
of
the
[defendant’s] contacts with the forum
state; (3) the relation of the cause of
action to the [defendant’s] contacts; (4)
the interest of the forum state in
providing a forum for its residents; and
(5) the convenience of the parties.
Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d
1384, 1390 (8th Cir. 1991) (citing Land-O-Nod Co. v. Bassett
Furniture Industries, Inc., 708 F.2d 1338 (8th Cir. 1983)).
The first three factors are the predominant “factors, and
the remaining two factors are secondary . . . .”

Johnson v.

Arden, 614 F.3d 785, 794 (8th Cir. 2010) (citation omitted).
A court must look at all of the factors together and “examine

9

the totality of the circumstances in making a personaljurisdiction determination.”

Id.

In this case, the Defendant denies this Court has either
general or specific personal jurisdiction.

The Court will

first consider specific jurisdiction.
In Burger King Corp. v. Rudzewicz, the Supreme Court
recognized that the exercise of specific jurisdiction is
proper when
an out-of-state defendant has ‘purposefully
directed’ his activities at residents of
the forum, and the litigation results from
alleged injuries that ‘arise out of or
relate to’ those activities.
471 U.S. 462, 473-74 (1985) (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 (1984) and Helicopteros
Nacionales de Colombia, 466 U.S. at 414).
Similarly, in Calder v. Jones, the Supreme Court ruled
that jurisdiction was proper so long as the defendant engaged
in “intentional conduct . . . calculated to cause injury” in
the forum State.

3

465 U.S. 783, 791 (1984).

As pointed out

in the Defendant’s responsive brief, specific jurisdiction is
3

The Eighth Circuit, rather than viewing Calder as
announcing independent grounds for a finding of personal
jurisdiction, has stated that it merely “requires the
consideration of additional factors . . . .”
Dakota
Industries, Inc., 946 F.2d at 1391.
10

rooted in the third factor of the five factor test cited
above, regarding the relationship of the parties’ contacts to
the pending cause of action.

See Bell Paper Box, Inc. v. U.S.

Kids, Inc., 22 F.3d at 816 (8th Cir. 1994).
The Defendant has sold its SJC and other candy in Iowa,
which

establishes

some

contacts

with

forum

state.

Additionally, the Defendant has an employee located in Iowa,
and it seems the employee does at least some business in Iowa.
The quality of the contacts is more complicated question. The
Defendant does less than 1% of its business in Iowa. However,
as discussed by the Plaintiff, the business the Defendant does
in Iowa is proportional to its business anywhere in the United
States,

based

upon

population.

Under

the

Plaintiff’s

argument, if the amount of business done by the Defendant in
Iowa is not sufficient to establish minimum contacts with
Iowa, then no state would be a proper forum for the Defendant
based upon the proportional business it does there.
That said, this case is not grounded in the sale of candy
alone. Rather, it is a declaratory judgment action related to
trademark infringement.

The Plaintiff wants this Court to

declare that UNG does not infringe on SJC.
11

This leads to the

third consideration, the specific jurisdiction consideration,
the relation of the contacts in the forum state to the present
cause of action.

In this case, it seems clear that the

Plaintiff became aware of the possibility of a trademark
conflict when the Defendant mailed the cease and desist letter
to Iowa.
Plaintiffs

The Defendant’s letter sought to discourage the
from

further

distributing it anywhere.

developing

UNG

in

Iowa

and

The Plaintiff hopes that the

resolution of this case will allow it to continue to develop
UNG in Iowa and distribute it everywhere.
It is true that sending a cease and desist letter into
the forum probably would not be a sufficient relationship to
establish personal jurisdiction absent other facts.

See Med-

Tec Inc. v. Kostich, 980 F. Supp. 1315 (N.D. Iowa 1997).
However, in this case, the Defendant sent a letter into Iowa,
hoping to discourage the development and sale of UNG in Iowa
because the Defendant believed that UNG would conflict with
its sale of SJC in Iowa (and elsewhere).

Based on that action

in Iowa, related to ongoing and future Iowa activities, the
Plaintiff filed the present suit to protect the development of
UNG. Accordingly, the Court finds that there is a significant
12

relationship between the Defendant’s contacts with Iowa and
the

cause

of

action

currently

before

the

Court.

More

succinctly put, but for the Defendant’s actions in Iowa, this
case

would

not

exist.

Accordingly,

specific

personal

jurisdiction exists.
Moreover, the final two factors also weigh in favor of
allowing this Court to exercise jurisdiction over the case and
controversy.

Certainly Iowa has an interest in allowing an

Iowa company to bring forth an action seeking to pro-actively
protect a product from a trademark suit, when Iowa resources
were (allegedly) used to develop the product, the product
would be sold in Iowa (and elsewhere) and the profits would
return to Iowa.
The final factor involves convenience of the forum.
this case, there are two companies:
Jersey, one in Iowa.

In

one located in New

One party will have to travel to Court.

Similarly, one company’s records will be in Iowa, the other’s
will

be

in

New

Jersey.

The

case

is

an

even

split.

Accordingly, Iowa is as convenient as New Jersey would be for
the

parties.

The

fact

that

New

Jersey

would

be

more

convenient for travel purposes for the Defendant is no reason
13

to divest this Court of jurisdiction, considering the forgoing
analysis.
Accordingly, the Court is persuaded that this is no mere
flow of commerce case.

The Defendant has profited from

selling candy in Iowa, and those sales are proportional to its
candy sales in the rest of the country. The Defendant employs
an Iowa based employee who does work in Iowa with Iowa
retailers.

And as discussed above, the Defendant sent a

letter to an Iowa company in Iowa to discourage the Plaintiff
from developing and selling an allegedly infringing candy.
When

those

facts

are

considered

under

the

five

factor

framework discussed above, it is clear that this Court has
general personal jurisdiction over the Defendant. Neither due
process nor traditional notions of fair play are offended by
allowing

this

Court

to

exercise

jurisdiction

over

this

Defendant.
B.

First Filed Rule

The Defendant’s second argument is that the Plaintiff
filed this Complaint to pre-empt the Defendant’s choice of
forum.

That is to say, the Defendant wanted to sue the

Plaintiff for trademark infringement in New Jersey, but the
14

Plaintiff rushed into this Court to ensure a friendly forum
for the developing dispute. The Defendant argues that because
the Plaintiff filed suit simply to divest the Defendant of its
chosen forum, the Complaint should be dismissed.
The Defendant admits that as a general principal, the
first party that files a suit gets to choose from among the
possible jurisdictions.

The Eighth Circuit Court of Appeals

has recognized the first-filed rule as follows:
The well-established rule is that in cases
of concurrent jurisdiction, “the first
court in which jurisdiction attaches has
priority to consider the case.”
Orthmann
v. Apple River Campground Inc., 765 F.2d
119, 121 (8th Cir. 1985). This first-filed
rule “is not intended to be rigid,
mechanical, or inflexible,” Orthmann, 765
F.2d at 121, but is to be applied in a
manner best serving the interests of
justice. The prevailing standard is that
“in
the
absence
of
compelling
circumstances,”
Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Haydu, 675 F.2d
1169,
1174
(11th
Cir.
1982),
the
first-filed rule should apply.
Med-Tec Iowa, Inc. v. Nomos Corp., 76 F. Supp. 2d 962, 967
(N.D. Iowa 1999) citing Northwest Airlines, Inc. v. American
Airlines, Inc., 989 F.2d 1002, 1005 (8th Cir. 1993).
first-filed rule has the benefit of being a:

15

The

relatively firm rule that, while providing
for the exceptional case, avoids in the
main the need for ad hoc balancing of
innumerable factors on a case-by-case basis
[and therefore] is both more predictable
for litigants-yielding more speedy, less
expensive adjudication-and more easily
applied by the courts-preserving scarce
judicial resources.
These are proper
considerations that are consistent with the
interests of justice.
Med-Tec Iowa, Inc., 76 F. Supp. 2d 962, citing Berisford
Capital Corp. v. Central States, Southeast & Southwest Areas
Pension Fund, 677 F. Supp. 220 (S.D.N.Y. 1988).
That said, there are exceptions to the first filed rule
and the Defendant argues that the first filed rule should not
apply in this case.
The prevailing standard is that the
first-filed rule should apply in the
absence of compelling circumstances. See
RK Dixon Co. v. Dealer Mktg. Servs., Inc.,
284 F. Supp. 2d 1204, 1213-14 (S.D. Iowa
2003).
No firm list of what factors
constitute compelling circumstances exists,
but in Northwest Airlines, Inc. v. American
Airlines,
Inc.,
the
Eighth
Circuit
identified two “red flags”
that can
potentially
signal
the
presence
of
compelling circumstances:
(1) when the
plaintiff filing the first case had notice
of an imminent lawsuit and (2) when the
first-filed
action
seeks
declaratory
judgment. See Nw. Airlines, 989 F.2d at
1007.
Compelling
circumstances
are
generally those that tend to show that the
first-filing party either “acted in bad
16

faith [or] raced to the courthouse to
preempt a suit by [the other party].” Id.
Maytag Corp. v. Int'l Union, United Auto., Aerospace, & Agric.
Implement workers of Am., 2009 WL 350649, 6 (S.D. Iowa Feb.
11, 2009).
Numerous
sufficient

to

courts

have

overcome

found

the

compelling

first

filed

circumstances

rule

when

the

first-filing plaintiff did so after being given notice that
the second-filing plaintiff was on the verge of filing a
lawsuit.

See, for example, Anheuser–Busch, Inc. v. Supreme

Int'l Corp., 167 F.3d 417, 419 (8th Cir. 1999) (finding
compelling circumstances where the defendant's letter gave the
plaintiff five days to respond to avoid a lawsuit but instead
of responding to the letter, the plaintiff filed suit); ACF
Indus. LLC. v. Chapman, 2004 WL 3178257 (E.D. Mo. Aug.26,
2004) (finding compelling circumstances where the plaintiff
filed suit the day after the defendant informed it that he
would “file in federal court” against the plaintiff).
As argued by the Defendant, the circumstances of this
case could implicate the two ‘red flags’ discussed above: the
Plaintiff filed suit after receiving a cease and desist letter
from the Defendant, and is arguing for declaratory relief.
See Nw. Airlines, 989 F.2d at 1007.
17

However, two questions

remain for this Court.

The first is whether the mere fact

that the Plaintiff seeks declaratory relief is indicative of
the fact that the Plaintiff intended to inappropriately preempt the Defendant’s suit; and, second, whether the Plaintiff
suffered the threat of imminent litigation.
Considering the first fact, courts have stated that the
mere fact that a first-filed action is one for declaratory
relief

is

not

sufficient;

declaratory

judgments

present

compelling circumstances only if they are “more indicative of
a preemptive strike than a suit for damages or equitable
relief.”

Nw. Airlines, 989 F.2d at 1007.

In other words,

“declaratory judgments are not to be used defensively to deny
a prospective plaintiff's choice of forums.”

Prudential Ins.

Co. Of America v. John Doe, 140 F.3d 785 at 790 (8th Cir.
1998).
As stated in Maytag Corp., 2009 WL 350649 at 7-8:
One indication that a plaintiff is using
the declaratory judgment statute for its
proper purpose is whether the plaintiff
encountered circumstances indicating the
need for a declaratory judgment.
See,
e.g.,
Prudential,
140
F.3d
at
790
(“Insurers
commonly
use
declaratory
judgment actions to determine coverage
questions, while simultaneously avoiding
exposure
to
substantial
bad
faith
18

damages.”); Nw. Airlines, 989 F.2d at 1007
(finding a declaratory judgment action was
necessary
because
the
defendant's
intimation that the plaintiff was violating
the law chilled the plaintiff's recruiting
efforts); Nw. Airlines, Inc. v. Filipas,
Civ., 2008 WL 1773756 (JNE/JJG)(D. Minn.
Apr. 15, 2008) (noting that since the
plaintiff's “obligations under [a] new
[benefit] plan were to begin immediately
...
it
was
neither
unseemly
nor
unreasonable for [the plaintiff] to seek to
resolve
the
lawfulness
of
the
new
retirement plan in the district where the
plan
was
negotiated
and
will
be
implemented”).
Maytag Corp., 2009 WL 350649 at 7-8.
At this early stage of the case, the Court is persuaded
that the Plaintiff is using the declaratory judgement statute
for its proper purpose.
potential

issue

with

When the Plaintiff became aware of a
the

trademark

of

UNG,

it

filed

a

declaratory judgment action to pro-actively ensure that the
expense of developing UNG would not go to waste.

The economy

flourishes on the backs of companies developing new products
and innovating.
ability

to

wait

If the courts denied entrepreneurs the
until

after

they

received

notice

of

a

potential trademark issue to file for declaratory judgment,
the

courts

would

burden

those

entrepreneurs

with

the

prohibitive cost of ruling out all competing trademarks before
19

they began research and development on new products.

Such a

rule would certainly have a chilling impact on many aspects of
the economy.

Accordingly, it appears to this Court that the

Plaintiff is using its action for declaratory relief for the
appropriate reason.
The next issue is whether the Plaintiff faced an imminent
threat of litigation. The cease and desist letter sent by the
Defendant on November 16, 2012, stated, “PIM hereby demands
that Foreign Candy immediately cease and desist from any
further
candy...

development...

of

the

infringing

RIPS

Watermelon

Unless we receive written confirmation by no later

than November 28, 2012... PIM will have no alternative but to
commence legal proceedings in order to protect its valuable
trademark rights.”

Docket No. 14, Ex. A.

Thus, it is beyond

dispute that the Plaintiff knew of a potential trademark fight
regarding UNG, and the Defendant had stated that it would
bring suit if the Plaintiff did not cease development of UNG.
However,

a

mere

finding

that

a

plaintiff

had

“a

reasonable apprehension that a controversy existed sufficient
to satisfy the constitutional requirements for a declaratory
judgment action, [such a finding] is not equivalent to an
20

imminent threat of litigation.”

Manuel v. Convergys Corp.,

430 F.3d 1132, 1137 (11th Cir. 2005).

If such were not the

case, “‘each time a party sought declaratory judgment in one
forum, a defendant filing a second suit in a forum more
favorable to [the] defendant could always prevail under the
anticipatory filing exception [to the first-filed rule].’”
Id. (quoting 800–Flowers, Inc. v. Intercont'l Florist, Inc.,
860

F.

Supp.

128,

132

(S.D.N.Y.

1994)).

The

Court

is

persuaded that the Plaintiff was not suffering an imminent
threat of litigation.

As all parties are aware, cease and

desist letters are sometimes sent with no real intention to
follow through.
practice

as

The Plaintiff’s brief characterizes this

‘blowing

smoke.’

Docket

No.

14,

p.

13.

Ultimately, this Defendant did file suit in New Jersey.
However, at the time the Plaintiff filed its Complaint, all it
knew was that a potential conflict existed.

The Plaintiff

sought, as any reasonable business would, to deal with the
conflict in the most direct way possible.
Under these facts, the Court is persuaded to allow the
first

filed

rule

to

operate

normally.

No

compelling

circumstances exist requiring this Court to deviate from the
21

first

filed

rule

and

dismiss

the

Plaintiff’s

Complaint.

Accordingly, the Defendant’s second argument in its Motion to
Dismiss is denied.
V.

CONCLUSION
For the reasons set out above, the Defendant’s Motion to

Dismiss is denied.
IT IS SO ORDERED this 20th day of June, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

22