Nelson et al v. Bitters et al

Filing 27

ORDER denying 11 Motion to Dismiss for Failure to State a Claim filed by Defendant William E Bitters; granting 15 Motion to Dismiss for Failure to State a Claim filed by Defendant Roland W Boland, Jr. The Clerk of Court is instructed to seal Exhibits C, F, and I, which were attached to plaintiffs amended complaint (Doc. 22 ), pursuant to Local Rule 10(h). Signed by Magistrate Judge CJ Williams on 3/18/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CLARENCE G. NELSON, Jr., and
VALORA L. NELSON,
Plaintiffs,

No. C15-4077-CJW

vs.

ORDER

WILLIAM E. BITTERS, d/b/a UNITED
FINANCIAL INFORMATION
SERVICES, and ROBERT W.
BOLAND, Jr., d/b/a/ UNITED
FINANCIAL INFORMATION
SERVICES,
Defendants.
____________________
I.

INTRODUCTION

Plaintiffs Clarence G. Nelson, Jr. (Nelson) and his wife, Valora L. Nelson,
brought suit alleging breach of trust, negligence, breach of contract, and securities
violations. Doc. 4. This matter is before the court pursuant to defendant William E.
Bitters’ (Bitters) Motion to Dismiss (Doc. 11), and defendant Robert W. Boland, Jr.’s
(Boland) Motion to Dismiss (Doc. 15). Plaintiffs resisted defendants’ motions. Docs.
17 & 23. No party requested oral argument, and, in any event, oral argument is not
necessary. The court deems the motions to dismiss the complaint fully submitted.
For the reasons set forth below, the court: 1) denies defendant Bitters’ Motion to
Dismiss; and 2) grants defendant Boland’s Motion to Dismiss.

II.

PROCEDURAL AND FACTUAL BACKGROUND

On September 21, 2015, plaintiffs filed a five count complaint against defendants.
Doc. 4. Count I alleged a breach of trust. Count II alleged gross negligence. Count
III alleged breach of contract. Count IV alleged federal securities violations, and Count
V alleged state securities violations. Defendant Boland was referenced only once by
name in introductory paragraphs 4 and 5, and was not referenced by name or description
as engaging in any conduct under any of the counts contained in the complaint.
On November 3, 2015, defendant Bitters filed a motion to dismiss the complaint.
Doc. 11.

On November 24, 2015, defendant Boland filed a motion to dismiss the

complaint. Doc. 15.
On December 8, 2015, plaintiffs filed a motion for leave to file an amended
complaint, with a proposed amended complaint attached. Doc. 16. On the same day,
plaintiffs filed a resistance to both motions to dismiss. Doc. 17.
On December 22, 2015, defendants filed a joint resistance to plaintiffs’ motion for
leave to file an amended complaint. Doc. 20.
On January 6, 2016, the court granted plaintiffs’ motion for leave to file an
amended complaint. Doc. 21. In its order, the court held that defendants’ pending
motions to dismiss would be deemed to apply to plaintiffs’ amended complaint, but
indicated the parties could file supplemental briefs on or before January 25, 2016.
On the same day, plaintiffs filed their amended complaint.1 Doc. 22.
Also on January 6, 2016, plaintiffs filed a brief in opposition to defendants’
motions to dismiss. Doc. 23. No party has since filed supplemental briefs.

Because the amended complaint replaces the original complaint, and for ease of reference, the
court will refer to the amended complaint as the “complaint,” rather than repeat the word
“amended” each time.
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On February 9, 2016, this case was assigned to a United States Magistrate Judge
for final disposition, by consent of the parties. Doc. 25.
In a nutshell, it appears this lawsuit arises out of a $200,000 loan by plaintiff
Nelson to a John L. Henry, Treo Engineering, Inc., and Treo Engineering Company,
JSJ Manufacturing, Inc., on March 27, 2008 (the Henry Loan).

Plaintiffs allege

defendant Bitters, acting in his capacity as a financial advisor, solicited plaintiff Nelson
to make the Henry Loan, which Henry never repaid. Plaintiff Nelson sued Henry et
al., and obtained a judgment against those defendants in 2012. Doc. 22, at 4, ¶17.
Plaintiffs have since filed this law suit seeking compensation from defendants Bitters and
Boland for their losses in relation to the failed Henry Loan.
III.

PLAINTIFFS’ AMENDED COMPLAINT

Plaintiffs’ amended complaint contains the same five claims of action as their
original complaint.

Compare Doc. 4 with Doc. 22.

Plaintiffs reference defendant

Boland by name again in introductory paragraphs 4 and 5, and now also in paragraphs
21 and 38. Plaintiffs added some language to various paragraphs (mostly, it appears, to
clarify relationships). The most substantive change in the complaint is the addition of
paragraphs 29 through 43. These paragraphs relate, primarily, to the execution of a
Power of Attorney document in 2011, which purportedly provided defendant Bitters with
the power of attorney to work on behalf of plaintiff Nelson to collect the debt owed him
from the Henry Loan.

Plaintiffs allege this conduct, and the Power of Attorney

document itself, constituted fraudulent misrepresentations and an attempt to “cover up”
defendant Bitters’ conduct and “scheme,” which plaintiffs assert equitably estop
defendants from the protection of the statute of limitations. Doc. 22, ¶¶ 46, 59.
Plaintiffs also attach a number of exhibits to their amended complaint. These
include: a copy of United Financial Services web page (Exhibit A); a promissory note
dated March 20, 2008 (Exhibit B); a copy of a check dated March 27, 2008 (Exhibit C);
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an affidavit of defendant Bill Bitters in connection with a case filed in Nebraska District
Court (Exhibit D); a Power of Attorney dated February 25, 2010, designating defendant
Bitters to act on plaintiff Nelson’s behalf in relation to the Henry Loan (Exhibit E); a
handwritten note dated October 30, 2014, purporting to terminate the Power of Attorney
(Exhibit F); a Consent and Waiver of Conflict, dated January 26, 2011, signed by plaintiff
Nelson (Exhibit G); a similar Consent and Waiver of Conflict, with the same date, signed
by defendant Bitters (Exhibit H); and a life insurance policy for John Henry (Exhibit I).2
IV.

THE PARTIES’ ARGUMENTS

Defendant Bitters moves to dismiss the complaint on the ground that all of
plaintiffs’ causes of action are barred by applicable statutes of limitations. Doc. 11.
Defendant Bitters argues that whether this court applies Nebraska or Iowa statutes of
limitations, plaintiffs’ causes of action arose outside the time allowed for filing suit.
Defendant Bitters also argues that the Iowa ten-year statute of limitations for breaches of
written contracts do not apply in this case because the complaint makes insufficiently
“vague and bare allusions” to “oral and written representations.” Doc. 11-1, at 8.
Defendant Boland moves to dismiss the complaint on the same statute of limitations
grounds, but also because plaintiffs’ complaint fails to state a claim against him. Doc.
15. Specifically, defendant Boland argues “[p]laintiffs’ Complaint does not allege any
specific acts or omissions on the part of Defendant Boland.” Doc. 15-1, at 3, 5.
Plaintiffs resist defendants’ motions to dismiss. Plaintiffs argue that equitable
estoppel by fraudulent concealment bar defendants from asserting statute of limitations

The court notes that Exhibits C and I contain personal data identifiers, and plaintiffs should
have redacted these exhibits so as to avoid such disclosure, pursuant to Local Rule 10(h); and
Exhibits C and F also contain other personal information, such as plaintiff’s home address.
The court will order these exhibits sealed to protect privacy and prevent identify theft. The
court cautions plaintiffs’ counsel to comply with the local rule and henceforth redact any
document that contains personal identification information prior to filing the document with the
court.
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defenses to the timeliness of plaintiffs’ claims. Doc. 23, at 2. As to defendant Boland,
plaintiffs urge that the complaint “does allege how Defendants Bitters and Boland are
connected” (Doc. 23, at 4), that defendants have made “judicial admissions” that they do
business together as United Financial Information Services (e.g., Doc. 23, at 2 & 6), and
that defendant “Boland does not deny anywhere that he is a part of” United Financial
Information Services (Doc. 23, at 6).

Plaintiffs argue, without reference to factual

allegations establishing the nature of the alleged business relationship between defendants
Bitters and Boland, and without citation to legal authority, that defendant Boland “appears
to be a general partner in this enterprise for all the information and knowledge that
Defendants would be jointly and severally liable by law as general partners [sic].” Doc.
23, at 6.
V.

ANALYSIS

A. Legal Standard
A complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
“detailed factual allegations.”

Fed.R.Civ.P. 8(a)(2).

Rule 8 does not require

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). Accordingly, Rule 8 “marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009).

Rule 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”

Iqbal, 556 at 678.

A complaint that

relies on “naked assertion[s]” devoid of “further factual enhancement,” “labels and
conclusions,” or “formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555, 557.
“When ruling on a defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
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Erickson v. Pardus, 51 U.S. 89,

94 (2007). It must also “grant all reasonable inferences from the pleadings in favor of
the nonmoving party.” United States v. Any & All Station Transmission Equip., 207
F.3d 458, 462 (8th Cir. 2000). To survive a motion to dismiss, then, the complaint
must “contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.”

Iqbal, 556 U.S. at 678. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. While plausibility is not
equivalent to probability, it is something “more than the sheer possibility that a defendant
has acted unlawfully.” Id. “The question . . . is not whether [the plaintiff] might at
some later stage be able to prove [a claim]; the question is whether [the plaintiff] has
adequately asserted facts (as contrasted with naked legal conclusions) to support his
claims.” Whitney v. Guys, Inc., 700 F.3d 1118, 1129 (8th Cir. 2012). In assessing
whether a complaint states a plausible claim, the court “considers only the materials that
are ‘necessarily embraced by the pleadings and exhibits attached to the complaint.’”
Whitney, 700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4
(8th Cir. 2003).

See also Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931

n.3 (8th Cir. 2012) (stating that in considering a motion to dismiss, the court may rely
on the face of the complaint and exhibits attached to the complaint whose authenticity is
unquestioned). A court must also assess “plausibility of the plaintiff’s claim as a whole,
not the plausibility of each individual allegation,” Zolteck Corp. v. Structural Polymer
Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010), “draw[ing] on [its own] judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
A court faced with a motion to dismiss may “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. With that in mind, the court has examined plaintiffs’ complaint
and has identified conclusory allegations and formulaic recitations that are not entitled to
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consideration as allegations of fact this court must accept as true for purposes of ruling
on the motions to dismiss.
Paragraph 12 alleges that defendants “collectively economically benefitted” from
the Henry Loan “in amounts presently unknown to Plaintiffs.” This is a bare conclusion
and does not allege facts which would establish both defendants personally financially
benefitted from the transaction. At most, a liberal reading of the complaint as a whole
would suggest a plausible factual basis to believe that defendant Bitters benefitted
financially from the transaction. But the complaint does not allege facts that would
create a plausible claim against defendant Boland.
Paragraph 21 stated that both defendants “had a conflict of interest acting as liaison
for the creation of the bad loan and being an agent on behalf of Plaintiff Clarence G.
Nelson, Jr. without either lender or borrower having met.”

Again, as to defendant

Boland for which there are no facts alleged in this or any other paragraph showing his
involvement in this transaction or with plaintiffs or Henry, this is a conclusion, not a
statement of fact the court is bound to accept as true.
Paragraph 29 asserts that the relationship between plaintiff Clarence G. Nelson,
Jr., and defendant Bitters “was a trust and fiduciary relationship,” and that defendant
Bitters “was essentially acting in unison and concert with John L. Henry, and the nature
of the Power of Attorney was intended to lead Clarence G. Nelson, Jr. into a ruse
believing that William Bitters was helping Plaintiff Clarence G. Nelson, Jr.” Again,
this is a conclusion and argument; it may or may not be an accurate conclusion to reach
from the facts alleged, but is itself not a factual allegation this court is obliged to accept
as true.
Paragraph 34 is conclusory to the extent is argues that defendant Bitters’
involvement with the Power of Attorney “was just an on-going perpetuation of the breach
of trust that Plaintiff Clarence G. Nelson, Jr. placed in Defendant Bitters and Bitter’s
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[sic] company, and Defendant Bitters defrauded Plaintiffs’ attorney Aaron Rodenburg as
well into believing that he was truly looking out for Plaintiffs.”
The entirety of paragraph 35 asserts a conclusion that defendant Bitters’ conduct
“was nothing more than a fraudulent concealment that William Bitters had other
‘investors’ who had lost money to John L. Henry and that Defendants were of the scheme
and plan to get money for Henry.” Plaintiffs argue that defendants “were acting one
and the same business as partners” and “intended to have Plaintiff Clarence G. Nelson,
Jr. act upon such misrepresentations of helping him collect the money from John L.
Henry to deflect attention to the scheme and plan that Defendants were operating under
to raise money for Henry . . . .” These phrases are conclusory, especially to the extent
it attempts to lump defendant Boland into the allegations when the complaint as a whole
lacks a factual basis to show his knowledge of the transaction, let alone his involvement
in it.
Paragraph 39 is conclusory to the extent Plaintiffs argue that certain events were
“part of the deception.”
The ending phrase “which is nothing more than a finger-pointing exercise intended
to not draw attention to [defendant Bitters’] own liability” in paragraph 41 is a conclusion.
Paragraphs 43 through 46 constitute conclusions that defendants have profited and
legal recitations which do not contain factual allegations.
Paragraph 51 is speculative and conclusory to the extent it claims defendant Bitters
“had a financial relationship of some kind with John L. Henry, which affected Defendant
Bitters’ judgment.”
Paragraphs 52 through 54 constitute conclusions and legal recitations, but do not
contain factual allegations.

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Paragraph 57 contains the legal conclusion that defendant Bitters’ representations
“constitute binding oral and written contracts to perform, which agreements were
breached by Defendants . . . .”
Paragraph 58 states the legal conclusion, asserting defendants breached a contract.
Part of paragraph 59 constitutes a legal conclusion and formulaic recitations to the
extent it asserts the Power of Attorney “was a further written contract” and to the extent
plaintiffs argue by that document “Defendants [sic] implicitly agreed to forebear taking
any action against Defendants, and by equitable estoppel and promissory estoppel
Defendants should not be entitled to claim there is no contract . . . .”
Paragraph 63 states a legal conclusion that “the nature of what Defendant Bitters
did was to create a financial instrument, to-wit a promissory note to John Henry
personally, which is a form of a security.”
Finally, Plaintiffs’ argument that “the security offered is not exempt from the
Securities Act of 1933 or the Securities Exchange Act of 1934 in any way, shape or form
as a private offering exemption . . . .” Again, it may be a correct legal conclusion, but
it is not an alleged fact this court is bound to accept as true for purposes of ruling on a
motion to dismiss.
B. Defendant Boland’s Motion to Dismiss
The court first addresses defendant Boland’s motion to dismiss because it is clear
that the complaint fails to state a claim against him. Plaintiffs’ complaint, even assuming
all alleged facts as true and affording it every reasonable inference, simply fails to state
a claim for which relief may be granted against defendant Boland. Shorn of conclusory
allegations, at best, plaintiffs’ complaint and attached exhibits establishes that defendants
Bitters and Boland at some point in time held themselves out as doing business together
as United Financial Information Services. Plaintiff does not allege facts from which this

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court could conclude that this relationship existed at the time of any wrongful conduct.3
The complaint does not allege facts from which the court can conclude that the defendants
have a legal partnership, corporation, or other relationship which would establish legal
liability by one for the acts of the other. There are no facts in the complaint establishing
that defendant Boland knew about the Henry Loan, let alone that he was involved in any
way. There are no factual allegations that defendant Boland ever spoke to or otherwise
communicated in any way with plaintiffs, defendant Bitters, or John L. Henry about the
Henry Loan or anything else. The factual allegations do not place defendant Boland as
being present for any transaction or discussion.

Defendant Boland’s name does not

appear on the promissory note (Exhibit B), the Power of Attorney (Exhibit E), or the
consents and waivers of conflict (Exhibits G & H) which appear to be the basis upon
which plaintiffs have brought this case. Defendant Bitters’ affidavit (Exhibit D) makes
no mention of defendant Boland. Indeed, none of the exhibits, with the exception of the
2015 website page, mention defendant Boland by name.
Plaintiff cannot simply haul an individual into court and expose that person to
discovery on the weight of a web page showing a business relationship between that
person and another person against whom plaintiffs have a cause of action. A complaint
which fails to identify acts or omissions by a defendant fails to state a claim against that
defendant.

See Ashby v. SLM Corp., Civ. No. 08-870, 2008 WL 1945181, at *2

(D.Minn. Apr. 30, 2008) (unpublished) (granting motion to dismiss complaint where it
failed to describe any specific acts or omissions by the defendants that breached any
contract or duty of care). For that reason, the court must grant defendant Boland’s

The court notes that the website page attached to the complaint (Exhibit A) bears a copyright
date of 2015. Plaintiffs did not represent in the complaint the date on which they accessed the
website.
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motion to dismiss. Because the court finds dismissal on this ground proper, it need not
address defendant Boland’s motion to dismiss on statute of limitations grounds.
C. Defendant Bitters’ Motion to Dismiss
Defendant Bitters moves to dismiss the complaint on the ground that all of
plaintiffs’ causes of action are allegedly barred by the statutes of limitations. Plaintiffs
appear to concede that, except for the breach of contract claim, the applicable statutes of
limitations would bar their claims were it not for the concept of equitable estoppel by
fraudulent concealment.

Doc. 23, at 2, 10-11.

With regard to the contract claim,

plaintiffs argue the choice of law analysis favors application of the Iowa statute of
limitations of ten years, by which measure, plaintiffs’ breach of contract claim would fall
within the time period. Doc. 23, at 6-10.

Defendant Bitters argues Nebraska’s five-

year statute of limitations for breach of contract claims should apply. Doc. 11-1, at 811.

Of course, whether Iowa law or Nebraska law applies becomes irrelevant if

plaintiffs are correct that defendant Bitters is barred by equitable estoppel from asserting
the statute of limitations.
It is important to keep in mind, however, the procedural status of this case. The
question before the court is not whether plaintiffs can successfully establish equitable
estoppel. At this stage of the litigation, the question is whether plaintiffs have plead
facts which, if taken as true, would establish a plausible basis for asserting such a claim.
If so, then dismissing the suit is not proper.

Defendant may be able to raise this issue

again by way of a summary judgment motion where the court could consider whether the
facts support an equitable estoppel argument.
“As a general rule, ‘the possible existence of a statute of limitations defense is not
ordinarily grounds for Rule 12(b)(6) dismissal unless the complaint itself establishes the
defense.’”

Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011)

(quoting Jessie v. Potter, 515 F.3d 709, 713 n.2 (8th Cir. 2008)). See also Varner v.
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Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (holding that “when it ‘appears
from the face of the complaint itself that the limitations period has run,’ a [statute of]
limitations defense may properly be asserted through a Rule 12(b)(6) motion to dismiss.”)
(quoting Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985)); Linden v. JBS USA,
LLC, No. 4:14-cv-00228-JAJ, 2014 WL 10040189, at *2 (S.D. Iowa Sept. 16, 2014)
(unpublished) (stating that “[m]otions to dismiss should not be granted on statute of
limitations grounds unless noncompliance with the statute of limitations appears on the
face of the complaint.”) (quotation and citation omitted).
The doctrine of fraudulent concealment is a form of equitable estoppel, which does
not toll the statute of limitation, but, rather, bars invocation of the statute of limitations
as an affirmative defense. See Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005)
(“Equitable estoppel prevents a defendant ‘from asserting the bar of the statute of
limitations’ based on ‘his agreement, misrepresentations, or conduct.’”) (quoting DeWall
v. Prentice, 224 N.W.2d 428, 430 (Iowa 1974). To prove fraudulent concealment, a
party must show by clear and convincing evidence “conduct amounting to false
representations or concealment, and a party relying thereon must be misled into doing or
failing to do something.” Christy, 692 N.W.2d at 701.
The foundation elements of equitable estoppel are well established: (1) the
defendant has made a false representation or has concealed material facts;
(2) the plaintiff lacks true knowledge of the facts; (3) the defendant intended
the plaintiff to act upon such representations; and (4) the plaintiff did in fact
rely upon such representations to his prejudice.
Id., at 702.

The first element of equitable estoppel/fraudulent concealment can be

proven by either evidence that (1) the defendant affirmatively concealed material facts;
or (2) “a confidential or fiduciary relationship exists between the person concealing” the
facts and “the aggrieved party.”

McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa

1997).
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In this case, plaintiffs pleaded equitable estoppel by fraudulent concealment in the
complaint. Doc. 22, ¶¶ 46, 59. The complaint alleges facts which, taken as true,
could form the basis for a claim of fraudulent concealment. The complaint alleges that,
acting in his capacity as a financial advisor, defendant Bitters solicited money from
plaintiff Nelson for the Henry Loan, which places defendant Bitters in a fiduciary
relationship with Nelson. Doc. 22, ¶¶ 8, 10. The complaint alleges that defendant
Bitters concealed from plaintiffs the relationship Bitters had with Henry, including that
defendant Bitters has solicited money from other investors who Henry had not repaid.
Doc. 22, at ¶¶ 11, 12, 18, 36, 37, & 42. The complaint alleges that defendant Bitters
represented to plaintiff Nelson that Bitters was working on Nelson’s behalf to help Nelson
recover funds from Henry, that defendant Bitters had plaintiff Nelson execute a Power
of Attorney in 2010 for this purpose, and that defendant Bitters continued this alleged
assistance in an effort to “ingratiate and convince plaintiff ... that [defendant Bitters] was
looking out for [plaintiffs’] best interests” as the clock ticked away on the statute of
limitations. Doc. 22, at ¶¶ 18, 34, 40, 41. In 2012, defendant Bitters authored an
affidavit in relation to the lawsuit by plaintiff Nelson against Henry in which defendant
Bitters stated that he “suggested to [plaintiff] to hold off on enforcement” of the Henry
Loan until 2011. Doc. 22-4, at 2 (Exhibit D).
Whether plaintiffs can actually prove these assertions by clear and convincing
evidence is another question, but it is a question for another day. At this stage of the
lawsuit, the court cannot dismiss a complaint because determining the merits of the
equitable estoppel claim requires an evaluation of the facts. Defendant Bitters’ statute
of limitations challenge is simply premature.

See, e.g., Coons v. Mineta, 410 F.3d

1036, 1041-42 (8th Cir. 2005) (reversing a district court’s order dismissing a lawsuit,
finding dismissal inappropriate because plaintiff pled equitable estoppel, the merits of
which could not be determined “[w]ithout a more developed record”); Stephens v.
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Associated Dry Goods Corp., 805 F.2d 812, 813-14 (8th Cir. 1986) (affirming denial of
a motion to dismiss where a plaintiff asserted equitable estoppel, opining that a statute of
limitations challenge “might be proper on summary judgment motion where undisputed
evidence is developed” or at a bench trial); Clemons v. Wullweber, No. C10-1032, 2011
WL 1982105, at *4-5 (N.D. Iowa May 20, 2011) (unpublished) (denying motion to
dismiss and finding statute of limitations challenge premature where plaintiff pled a
continuing action claim).
VI.

CONCLUSION

For the reasons set forth herein, defendant Boland’s motion to dismiss is
GRANTED, and defendant Bitters’ motion to dismiss is DENIED.
The Clerk of Court is instructed to seal Exhibits C, F, and I, which were attached
to plaintiffs’ amended complaint (Doc. 22), pursuant to Local Rule 10(h).
IT IS SO ORDERED this 18th day of March, 2016.

__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa

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