Phillips et al v. ABB Combustion Engineering, Inc. et al

Filing 61

ORDER & REASONS granting 20 & 21 Motions to Dismiss for Lack of Personal Jurisdiction. Parties Grand Island City & Nebraska Public Power District dismissed. Signed by Judge Martin L.C. Feldman on 6/17/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROL PHILLIPS, ET AL.

CIVIL ACTION

v.

NO. 13-594

ABB COMBUSTION ENGINEERING, INC.

SECTION "F"

ORDER AND REASONS
Before the Court are two motions:

(1) The City of Grand

Island's motion to dismiss for lack of personal jurisdiction or,
alternatively, for failure to state a claim; and (2) Nebraska
Public Power District's motion to dismiss for lack of personal
jurisdiction or, alternatively, for failure to state a claim.

For

the reasons that follow, the motions to dismiss for lack of
personal jurisdiction are GRANTED.
Background
This lawsuit arises from a widow’s claim that her husband's
exposure to asbestos while working for several companies over many
years caused him to develop mesothelioma and, ultimately, caused
his death.
On November 26, 2012 Carol Phillips (wife of Robert Lee
Phillips) and the Estate of Robert Lee Phillips sued Associated
Electric Cooperative, Inc. (AECI); ABB Combustion Engineering,
Inc.; Centerpoint Energy, Inc.; Nebraska Public Power District
(NPPD); and Grand Island City in Louisiana state court.
1

On April

2, 2013 NPPD, with the other defendants’ consent, removed the case
to this Court, invoking the Court’s diversity jurisdiction.1
The plaintiffs allege that Robert Lee Phillips, who lived in
St. John Parish before his death, was exposed to asbestos while he
worked at various times for each of the defendants.

Mr. Phillips'

employment time-line:
•
•
•
•
•

Phillips worked for ABB Combustion Engineering from 1956
to 1962.
Phillips worked for Centerpoint Energy from 1962 to 1968.
Phillips worked for City of Grand Island from 1969 to
1974.
Phillips worked for Nebraska Public Power District from
1974 to 1977.
Phillips worked for AECI from 1977 to 1980.

Plaintiffs allege that Mr. Phillips “worked with and/or was exposed
to asbestos containing products while working at certain premises
owned,

operated

or

controlled

by

[each

defendant].”

Each

defendant, the plaintiffs allege, “knew or should have known
through

industry

and

medical

studies...of

the

health

hazards

inherent in the asbestos containing products they were using.”
Finally, the plaintiffs charge that the defendants “ignored or

1

The plaintiffs allege complete diversity of citizenship.
Carol Phillips is domiciled in St. John Parish, Louisiana. ABB
Combustion Engineering, Inc. is a corporation organized in Delaware
with its principal place of business in Connecticut. Centerpoint
Energy, Inc. is a corporation organized in Texas with its principal
place of business in Texas. AECI is a corporation organized in
Missouri with its principal place of business in Missouri. NPPD is
a corporation organized in Nebraska with its principal place of
business in Nebraska.
City of Grand Island is a corporation
organized in Nebraska with its principal place of business in
Nebraska.
2

concealed such information” from Mr. Phillips, and as a result of
his

exposure,

Mr.

Phillips

suffered

from

asbestos-related

mesothelioma and other physical and mental injuries.

In light of

the alleged facts, the plaintiffs seek damages based on negligence,
premises liability, and wrongful death and survival claims.
Grand Island and NPPD now request dismissal of the plaintiffs'
claims for lack of personal jurisdiction and, alternatively, for
failure to state a claim.
I.
A.
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows
a

defendant

to

challenge

the

Court’s

exercise

of

personal

jurisdiction over it.
When nonresident defendants like The City of Grand Island and
Nebraska Public Power District seek dismissal for lack of personal
jurisdiction under Rule 12(b)(2), the plaintiffs bear the burden of
establishing the Court’s jurisdiction over the defendant, but need
only make a prima facie case if the Court rules without an
evidentiary hearing.

See Johnston v. Multidata Sys. Int’l Corp.,

523 F.3d 602, 609 (5th Cir. 2008); see also Luv N’ Care v. InstaMix, Inc., 438 F.3d 465, 469 (5th Cir.), cert. denied, 548 U.S. 904
(2006). The Court is not restricted to pleadings, but may consider
affidavits, interrogatories, depositions, or any other appropriate
method of discovery.

Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.

1994); see Jobe v. ATR Mktg., Inc., 87 F.3d 751, 752 (5th Cir.
3

1996).
Court

"In determining whether a prima facie case exists, this
must

accept

as

true

[the

plaintiffs']

uncontroverted

allegations, and resolve in [their] favor all conflicts between the
[jurisdictional] facts contained in the parties' affidavits and
other documentation."

Pervasive Software, Inc. v. Lexware GMBH &

Co. KG, 688 F.3d 214, 219-20 (5th Cir.

2012)(quoting Freudensprung

v. Offshore Technical Servs., Inc., 379 F.3d 327, 343 (5th Cir.
2004)(alterations in original)(quotation omitted)).
B.
The

Court

may

exercise

personal

jurisdiction

over

nonresident defendant only if two requirements are satisfied:

a
(1)

the forum state’s long-arm statute confers personal jurisdiction;
and (2) the exercise of jurisdiction comports with Due Process.
See Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th
Cir. 2006). Because the limits of Louisiana’s long-arm statute are
co-extensive with the limits of constitutional due process, the
two-part inquiry merges into one: whether this Court’s exercise of
jurisdiction over the defendants would offend due process. See La.
R.S. 13:3201(B)(providing that a Louisiana court “may exercise
personal jurisdiction over a nonresident on any basis consistent
with . . . the Constitution of the United States”); Luv N’ Care,
438 F.3d at 469; see also Electrosource, Inc. v. Horizon Battery
Techs., Ltd., 176 F.3d 867, 871 (5th Cir. 1999).

4

“The Due Process Clause protects an individual’s liberty
interest in not being subject to the binding judgments of a forum
with which he has established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72
(1985)(citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 319
(1945)); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 413-14 (1994)(The Due Process Clause limits the Court’s
power

to

assert

defendant.).

To

personal

jurisdiction

conclude

that

the

over

a

exercise

nonresident
of

personal

jurisdiction comports with Due Process it must be shown that (1)
the defendant has purposefully availed itself of the benefits and
protections of the forum state by establishing “minimum contacts”
with that state; and (2) the exercise of personal jurisdiction does
not offend “traditional notions of fair play and substantial
justice.” Choice Healthcare, Inc. v. Kaiser Foundation Health Plan
of Colorado, 615 F.3d 364, 367 (5th Cir. 2010)(citations omitted).
“The ‘minimum contacts’ inquiry is fact intensive and no one
element

is

decisive;

rather

the

touchstone

is

whether

the

defendant’s conduct shows that it ‘reasonably anticipates being
haled into court’” in the forum state. McFadin v. Gerber, 587 F.3d
753, 759 (5th Cir. 2009), cert. denied, 131 S.Ct. 68 (2010).
The

minimum

contacts

inquiry

takes

two

forms,

and

the

constitutional limitations on the exercise of personal jurisdiction
differ depending on whether a court is asked to exercise general or

5

specific jurisdiction over the defendant. Choice Healthcare, Inc.,
615 F.3d at 368 (“The ‘minimum contacts’ prong of the two-part test
may be further subdivided into contacts that give rise to ‘general’
personal jurisdiction and ‘specific’ personal jurisdiction.”).
Regardless of whether the lawsuit is related to the defendant’s
contacts with the forum, courts may exercise general jurisdiction
over any lawsuit brought against a defendant that has substantial,
continuous, and systematic general contacts with the forum state.
See Seiferth, 472 F.3d at 271 (citing Helicopteros Nactionales 466
at 413-14); Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309,
312 (5th Cir. 2007)(“Random, fortuitous, or attenuated contacts are
not sufficient to establish jurisdiction.”). “If”, on the other
hand, “a defendant has relatively few contacts, a court may still
exercise specific jurisdiction ‘in a suit arising out of or related
to the defendant’s contacts with the forum.’”

Id.

General

jurisdiction focuses on incidents of continuous activity within the
disputed forum; specific jurisdiction is more constrained by virtue
of a very limited nexus with the forum.
If a plaintiff demonstrates minimum contacts between the
defendant and the forum state, then the Court may exercise personal
jurisdiction unless the defendant makes a “compelling case” that
the exercise of jurisdiction is unfair or unreasonable.

Burger

King Corp. V. Rudzewicz, 471 U.S. 462, 477 (1985); Wien Air Alaska,
Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999).

6

In determining

whether the exercise of jurisdiction is fair and reasonable, the
Court considers certain fairness factors: (1) the burden on the
non-resident defendant; (2) the interests of the forum state; (3)
the plaintiff’s interest in obtaining relief; (4) the interstate
judicial system’s interest in the most efficient resolution of
controversies; and (5) the shared interests of the several states
in furthering fundamental social policies.

See Nuovo Pignone v.

Storman Asia M/V, 310 F.3d 374, 382 (5th Cir. 2002)(citation
omitted).
Grand Island and NPPD contend that the Court lacks personal
jurisdiction over them because the plaintiffs fail to allege any
jurisdictional nexus between them and the State of Louisiana and,
moreover, the defendants submit that the record establishes that
they lack sufficient contacts with Louisiana for the Court to
assert personal jurisdiction over them.
II.
A.
The

Court

first

General Jurisdiction
considers

the

plaintiffs'

argument

that

several factors support the exercise of general jurisdiction over
NPPD.2

The

general

jurisdiction

argument

advanced

by

the

plaintiffs readily fails.
A court has general jurisdiction over a nonresident defendant

2

The plaintiffs apparently concede that the Court may not
exercise general jurisdiction over Grand Island.
7

“to hear any and all claims” against him when his contacts with the
state are so “‘continuous and systematic’ as to render [him]
essentially

at

home

in

the

forum.”

Goodyear

Dunlop

Operations v. Brown, 131 S.Ct. 2846, 2851 (2011).

Tires

The general

jurisdiction inquiry is “dispute blind, the sole focus being on
whether there are continuous and systematic contacts between the
defendant and the forum.”

Dickson Marine, Inc. v. Panalina, Inc.,

179 F.3d 331, 339 (5th Cir. 1999).

Rather than mere “minimum”

contacts, “continuous and systematic” contacts must exist between
the state and the foreign defendant because “the forum state does
not have an interest in the cause of action.”

Id.

The Fifth

Circuit has noted that the continuous and systematic test “is a
difficult one to meet, requiring extensive contacts between a
defendant and a forum.”
Cent.,

249

F.3d

413,

Submersible Sys., Inc. v. Perforadora
419

(5th

Cir.

2001).

“[V]ague

and

overgeneralized assertions that give no indication as to extent,
duration, or frequency of contacts are insufficient to support
general jurisdiction.”

Johnston v. Multidata Sys. Int’l Corp.,,

523 F.3d 602, 610 (5th Cir. 2008) (citation omitted)(reviewing past
cases “to illustrate just how difficult it is to establish general
jurisdiction”).
evaluating

“General

contacts

of

the

jurisdiction
defendant

can

with

be
the

assessed
forum

over

by
a

reasonable number of years, up to the date the suit was filed.”
Id. (quoting Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d

8

694, 717 (5th Cir. 1999)).
For

NPPD

jurisdictional

to

be

haled

principles,

it

into

Court

must

have

based
had

on

general

continuous

and

systematic general contacts with Louisiana. In considering whether
the plaintiffs have made a prima facie case that sufficient
contacts exist to justify the exercise of general jurisdiction, the
Court considers the affidavits and other evidence presented to it.
See Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th
Cir. 1985).
NPPD contends that the Court lacks general jurisdiction over
it in light of the following uncontroverted jurisdictional facts:
•
•
•
•

•
•
•
•
•
•

NPPD is a public corporation and political subdivision of the
State of Nebraska.
NPPD's principal place of business is Columbus, Nebraska.
NPPD had never maintained any offices, facilities, or
headquarters in Louisiana.
The majority of NPPD's business, which consists of the
generation, transmission, and distribution of electric power
and energy for sale to wholesale and retail customers in
Nebraska, is confined exclusively within Nebraska, the limited
exceptions touching South Dakota, Iowa, Missouri, and Kansas.
NPPD does not own any real estate or other property or have
any business operations in Louisiana.
NPPD has never maintained any accounts with financial
institutions in Louisiana.
NPPD has never paid, and is not obligated to pay taxes of any
kind to Louisiana or its political subdivisions.
NPPD's business during the time period relevant to Mr.
Phillips' employment with NPPD (1974-1977) in no way involved
any connection or relationship to Louisiana.
NPPD has sent representatives to Louisiana for business trips
of short duration for routine utility industry-related
consultations or meetings.
NPPD sent a 12-man power crew to assist in power restoration
after Hurricane Katrina.

9

The plaintiffs do not dispute this record.

Rather, they limply

suggest that sending corporate employees to Louisiana for industry
meetings

supports,

jurisdiction.

they

would

hope,

a

finding

of

general

In so doing, the plaintiffs advocate a "sprawling

view" of general jurisdiction not at all supported by the case
literature.3

"[L]imited attendance of trade shows in New Orleans

is insufficient to establish general jurisdiction."

See Dis-Tran

Wood Products, LLC v. Brooks Mfg. Co., No. 12-1876, 2012 WL 5988770

3

If the Court accepted the plaintiffs’ argument, then
most U.S. corporations that send employees to Louisiana for
conventions and trade shows would be subject to general
jurisdiction in Louisiana, as a matter of law, and without analysis
of the quality or quantity of those contacts or their purposeful
availment of the relevant forum. The plaintiffs fail to convince
the Court to take that leap. Cf. Goodyear Dunlop Tires Operations
v. Brown, 131 S.Ct. 2846, 2856 (2011)(rejecting “sprawling view of
general jurisdiction urged by” plaintiff in which “any substantial
manufacturer or seller of goods would be amenable to suit, on any
claim for relief, wherever its products are distributed”); see
Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 584-85 (5th
Cir. 2010)(holding that no general personal jurisdiction existed
over defendant manufacturer that had no office, bank accounts,
employees, postal address, or property in the forum state, and that
was neither registered to do business nor paid taxes in the forum
state; the only contacts with the forum were that the handguns the
defendant supplied parts for in another state were sold in the
forum state, it attended two trade shows in the forum, and it
advertised and marketed in nationwide media that reached the forum
state); see also Johnston v. Multidata Sys. Int’l Corp., 523 F.3d
602, 611-14 (5th Cir. 2008)(illustrating “just how difficult it is
to establish general jurisdiction” and holding that general
personal jurisdiction was lacking over defendants including
defendant that maintained no business in the forum, despite the
fact that over a five year period, the defendant had sold $140,000
worth of goods and service-related contracts to customers in the
forum, representing three percent of the defendant’s business, its
employees
periodically
traveled
to
the
forum,
and
its
advertisements in national publications reached the forum).
10

(W.D. La. Nov. 29, 2012)(citing Grober v. Mako Products, Inc., 686
F.3d 1335, 1346 (Fed. Cir. 2012)).

Moreover, the fact that NPPD

sent a 12-man crew to Louisiana to assist in post-Katrina power
restoration is hardly substantial, from a general jurisdictional
standpoint, to amount to continuous and systematic general business
contacts with Louisiana.

See generally Helicopteros Nacionales de

Columbia, S.A. v. Hall, 466 U.S. 408 (1984)(finding no personal
jurisdiction over a defendant in Texas, notwithstanding a number of
contacts, including purchasing helicopters and parts for seven
years, sending pilots to Texas for training, and one visit to Texas
by defendant’s chief executive officer).
Given the jurisdictional facts, the plaintiffs have not shown
that NPPD has the kind of systematic and continuous contacts with
Louisiana sufficient to support this Court’s exercise of general
jurisdiction.
B.

Specific Jurisdiction

“In contrast to general, all-purpose jurisdiction, specific
jurisdiction is confined to adjudication of ‘issues deriving from,
or

connected

with,

the

very

controversy

that

establishes

jurisdiction.’” Goodyear Dunlop Tires Operations, 131 S.Ct. at
2851.

The Fifth Circuit has articulated a three-step specific

personal jurisdiction inquiry:
(1)

Did the plaintiff’s cause of action arise
out of or result from the defendant’s
forum-related contacts?

11

(2)

Did the defendant purposefully direct its
activities toward the forum state or
purposefully
avail
itself
of
the
privilege
of
conducting
activities
therein; and

(3)

Would
the
exercise
jurisdiction over the
reasonable and fair?

of
personal
defendant be

Pervasive Software, Inc. v. Lexware GMBH & Co. KG, 688 F.3d 214,
227 (5th Cir. 2012).4

“[T]he defendant’s contacts [with the forum]

must be more than ‘random, fortuitous, or attenuated, or of the
unilateral activity of another party or third person,’”; however,
the Fifth Circuit observes that, unlike general jurisdiction,
“specific jurisdiction may exist where there are only isolated or
sporadic contacts’ ...so long as the plaintiff’s claim relates to
or arises out of those contacts.”

ITL, Int’l, Inc. v. Constenla,

S.A., 669 F.3d 493, 498-99 (5th Cir. 2012)(citations omitted).
Finally, specific personal jurisdiction is claim-specific;
that is, if a plaintiff’s claims relate to different forum contacts
of the defendant, then specific jurisdiction must be established
for each claim.

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d

266, 274-75 (5th Cir. 2006); McFadin v. Gerber, 587 F.3d 753, 759
(5th Cir. 2009), cert. denied, 131 S.Ct. 68 (2010).
The plaintiffs allege, identically, as to all defendants, that

4

If the plaintiff establishes (1) and (2), then
the
burden shifts to the defendant, who must show that it would be
unfair or unreasonable to exercise jurisdiction. Id.
12

Grand Island and NPPD negligently failed to ensure a safe work
environment for Mr. Phillips and, similarly, that the jobsites and
facilities where Mr. Phillips worked contained asbestos and created
an unreasonable risk of harm to Mr. Phillips; and ultimately caused
his death.
The plaintiffs' claims concerning asbestos exposure relate to
the same alleged forum contacts, none of which support the exercise
of specific jurisdiction.

The Court first notes that allegations

suggesting any Louisiana contacts by any of the defendants are
notably absent from the allegations of the state court petition.5
In an attempt to gloss over this glaring omission, the plaintiffs
argue in their opposition papers that both Grand Island and NPPD
admit to employing Mr. Phillips and that
Upon information and belief, Mr. Phillips
of the State of Louisiana immediately
period of employment with NPPD [and Grand
upon information and belief, NPPD [and

5

was a resident
preceding his
Island]. Thus,
Grand Island]

In addressing the general jurisdictional theory advanced
by the plaintiffs with respect to NPPD, the Court noted the
jurisdictional facts submitted by NPPD. Similarly, Grand Island
submits, and the plaintiffs do not attempt to dispute:
•
Grand Island is a municipality and operates exclusively
within Nebraska.
•
Grand Island has never maintained any offices,
facilities, or headquarters in Louisiana.
•
Grand Island does not own any real estate property in
Louisiana.
•
Grand Island has never paid, and is not obligated to pay
taxes of any kind in Louisiana.
•
Grand Island's business during the time period relevant
to Mr. Phillips' employment at Grand Island (1969-1974)
in no way involved any connection or relationship to the
State of Louisiana.
13

actively solicited6 Mr. Phillips in Louisiana to move to
Nebraska to work for NPPD [and Grand Island].
Such
purposeful activities directed toward the state of
Louisiana are sufficient for this Court to exercise
specific jurisdiction over NPPD [and Grand Island] as the
cause of action at issue arises out of Mr. Phillips'
employment with NPPD [and Grand Island].
But

the

Court

need

not

speculate

as

to

whether

or

not

the

defendants recruited Mr. Phillips while he was a Louisiana resident
because the record belies the plaintiffs' wishful speculation: Mr.
Phillips'

social

security

records,

which

plaintiffs'

counsel

provided to defendants, show that Mr. Phillips worked in Texas from
1962 until 1969; then worked for Grand Island in Nebraska from the
latter portion of 1969 through the second quarter of 1974, at which
time Mr. Phillips began working for NPPD, where he continued to
work until 1977.

At the very least,7 these facts undermine the

plaintiffs' speculation that Mr. Phillips resided in Louisiana
during the time when either Grand Island or NPPD would have been
recruiting him.8

6

In advancing identical arguments in opposition to the
defendants' motions, the plaintiff uses only slightly different
language, suggesting that Grand Island "must have enticed Mr.
Phillips in some way...."
7

Counsel for defendants draw attention to 28 U.S.C. §
1927, noting that the plaintiffs' recruitment theory is clearly
contradicted by the social security records that plaintiffs turned
over to defendants. As always, the Court expects all counsel to be
mindful of their professional responsibilities.
8

It is telling that the plaintiffs focus on Mr. Phillips'
supposed whereabouts, and not on an attempt to establish a
connection between the defendants and the forum state, which is
dispositive of personal jurisdiction inquiries. The Court need not
14

In short, the jurisdictional facts in the record undermine the
plaintiffs' baseless specific personal jurisdiction theory as
advanced against either Grand Island or NPPD.9
Island

nor

NPPD

purposefully

directed

its

Neither Grand

activities

toward

address the theory advanced by the plaintiffs, in which they
attempt to invoke the (very limited) Calder effects test; the
plaintiffs' have not established any factual threshold for even
considering such a theory. Indeed, the Court reminds counsel that
"the effects doctrine is not as expansive as [the plaintiffs]
argue." McFadin, 587 F.3d at 762. In fact, "[f]oreseeable injury
alone is not sufficient to confer specific jurisdiction, absent the
direction of specific acts toward the forum." Id. (quoting Wien
Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir.
1999)(expressing concern that too broad a reading would subject a
nonresident defendant "to jurisdiction in Texas for an intentional
tort simply because the plaintiff's complaint alleged injury in
Texas
to
Texas
residents
regardless
of
the
defendant's
contacts....")). No allegation or jurisdictional fact of record
establishes that either Grand Island or NPPD had any contact with
Louisiana relating to the claims in this lawsuit, let alone any
contact that was deliberate, rather than simply random or
fortuitous. The fact that Mr. Phillips may have lived in Louisiana
when he became ill does not inform the jurisdictional inquiry into
whether the defendants directed conduct toward the forum such that
they ‘reasonably anticipate[d] being haled into court’” in
Louisiana.
9

No evidence has been submitted to support the
recruitment theory of personal jurisdiction; rather, the defendants
submit records supplied by the plaintiffs that contradict the
plaintiffs' sole jurisdictional theory. And, as the magistrate
judge recently pointed out in denying the plaintiffs' motion to
conduct limited discovery on personal jurisdiction: "defendants
submitted jurisdictional affidavits that foreclose the exercise of
personal jurisdiction, and plaintiffs failed to do so....
Accordingly,...it appears that any jurisdictional discovery would
be futile here and would serve no purpose." See Minute Order at
Rec. Doc. 69 (Knowles, M.J.)(citing Gines v. D.R. Horton, Inc., 867
F. Supp. 2d 824, 830 (M.D. La. 2012)). Thus, to the extent the
plaintiffs continue urge that jurisdictional discovery may fill the
gaps in the personal jurisdictional inquiry, that request was
denied.
15

Louisiana.

This Court lacks personal jurisdiction over Grand

Island and NPPD.
Accordingly, The City of Grand Island's motion to dismiss for
lack of personal jurisdiction is GRANTED, and NPPD's motion to
dismiss for lack of personal jurisdiction is also GRANTED.10

The

plaintiffs' claims against Grand Island and NPPD are dismissed.
New Orleans, Louisiana, June 17, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

10

Because the Court has determined that it lacks personal
jurisdiction over the defendants, it need not reach the defendants’
alternative requests that the Court dismiss the plaintiffs’ claims
for failure to state a claim.
16