LAMPREY v. WELLS FARGO HOME MORTGAGE et al
ORDER ON THE DEFENDANTS' MOTION TO DISMISS denying 12 Motion to Dismiss for Failure to State a Claim By JUDGE JON D. LEVY. (akr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WELLS FARGO HOME
MORTGAGE d/b/a AMERICA’S
SERVICING COMPANY, et al.
ORDER ON THE DEFENDANTS’ MOTION TO DISMISS
Plaintiff Diane Lamprey filed this lawsuit against Defendants Wells Fargo
Home Mortgage d/b/a America’s Servicing Company (“ASC”) and the Bank of New
York Mellon Trust Company, N.A., as successor-in-interest to JP Morgan Chase,
N.A., for certificateholders of the Nomura Asset Acceptance Corporation Mortgage
Pass-Through Certificates, Alternative Loan Trust Series 2005-AR2 (“Bank of New
She alleges that ASC, acting as Bank of New York’s agent, unlawfully
communicated with her during the pendency of her five-year Chapter 13 bankruptcy
proceeding, and again following her bankruptcy discharge, in violation of 11 U.S.C.A.
§§ 362(a)(6) and 524(a)(2) (2017). Lamprey also alleges that ASC, acting as Bank of
New York’s agent, violated the Maine Consumer Credit Code, 9-A M.R.S.A. § 9-403
(2017) (Count Three); the federal Fair Debt Collection Practices Act, 15 U.S.C.A. §§
1692, et seq. (Count Four); and the Maine Fair Debt Collection Practices Act, 32
M.R.S.A. §§ 11001, et seq. (Count Five).
The Defendants have moved to dismiss Lamprey’s Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, I deny the
I. FACTUAL BACKGROUND
In December 2004, Lamprey and her then-husband executed a $325,000
promissory note secured by a mortgage on their home in Eliot, Maine (the “Property”).
Lamprey and her husband divorced in 2007, with Lamprey receiving the sole
ownership of the Property. She ceased making mortgage payments in October 2008.
In May 2009, Mortgage Electronic Registration Systems, Inc., as nominee of
the original lender, assigned the mortgage and note to defendant Bank of New York.1
ASC was Bank of New York’s loan servicer at all relevant times. Bank of New York
initiated foreclosure proceedings in the Maine District Court in June 2009 and
received a Judgment of Foreclosure and Sale in August 2010.
Pursuant to 14 M.R.S.A. § 6322 (2017), there was a 90-day redemption period
following the foreclosure judgment. In October 2010, with 44 days remaining in the
redemption period, Lamprey filed a chapter 13 bankruptcy petition and physically
vacated the Property, believing that this was a requirement of the Judgment of
Foreclosure and Sale. See In re Lamprey, No. 10-21713 (Bankr. D. Me. October 12,
Pursuant to 11 U.S.C.A. § 108(b) (2017), the redemption period was
automatically extended by 60 days after Lamprey’s bankruptcy petition date, to
The assignment of the mortgage and note predates the Law Court’s ruling in Bank of America, NA
v. Greenleaf, 2014 ME 89, 96 A.3d 700.
December 11, 2010. The redemption period expired without the Property being
In her Bankruptcy Schedules, Lamprey listed the Property as an asset and
identified ASC as a secured creditor. ECF No. 1-5 at 3, 8 (Schedule “A” and Schedule
“D”). Her Chapter 13 Plan (the “Plan”) was filed later in December and was confirmed
by the Bankruptcy Court without objection in January 2011. Five years later, in June
2015, the Bankruptcy Court discharged Lamprey from bankruptcy.
Beginning as early as October 2010 and continuing until September 2016, ASC
sent at least 28 letters and notices to Lamprey concerning the Property and the
promissory note. These communications form the basis for her claims against the
II. LEGAL STANDARD
For Lamprey to survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), her complaint must “contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal citation and quotation marks omitted), and must
present facts that plausibly suggest Lamprey’s right to the relief requested, see Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The burden of demonstrating
that the complaint does not state a claim for which relief can be granted is on the
Defendants. See 5B Charles Alan Wright & Arthur R. Miller et al., Federal Practice
and Procedure § 1357 (3d ed. 2017 Update).
III. LEGAL ANALYSIS
The Bankruptcy Claims (Counts One and Two)
Lamprey alleges that the Defendants violated the automatic stay, 11 U.S.C.A.
§ 362(a)(6), and the discharge injunction, 11 U.S.C.A. § 524(a)(2), by communicating
with her during the pendency of her bankruptcy and after her discharge from
“The automatic stay is one of the fundamental protections that the Bankruptcy
Code affords to debtors.” Jamo v. Katahdin Fed. Credit Union (In re Jamo), 283 F.3d
392, 398 (1st Cir. 2002). It “springs into effect upon the filing of a bankruptcy
petition,” id., prohibiting all creditors’ efforts to enforce liens or claims in order to
prevent them from acting against property of the debtor or of the estate without leave
of the bankruptcy court, In re SW Boston Hotel Venture, LLC, 748 F.3d 393, 399 (1st
Cir. 2014); Knowles v. Bayview Loan Svcing, LLC (In re Knowles), 442 B.R. 150, 160
(B.A.P. 1st Cir. 2011). Although it is “extremely broad in scope,” the automatic stay
does not prohibit all communication or actions by a creditor to a debtor. Knowles, 442
B.R. at 160 (citing King, et al., Collier on Bankruptcy ¶ 362.03 (15th ed. rev. 2007)).
A communication violates the automatic stay if it is “coercive or harassing” or
“immediately or potentially threaten[ ] the debtor’s possession of its property.” Id.
The discharge injunction “is like a permanent extension of the automatic stay.”
McConnie Navarro v. DLJ Mort. Capital, Inc. (In re Navarro), 563 B.R. 127, 141
(Bankr. D.P.R. 2017). It operates as a permanent injunction against the
commencement or continuation of an action to collect discharged debts. Best v.
Nationstar Mortgage, LLC (In re Best), 540 B.R. 1, 8 (B.A.P. 1st Cir. 2015) (quoting
11 U.S.C. § 524(a)(2)). Like the automatic stay, under the discharge injunction
“contact with the Debtor is not per se prohibited,” instead, only “demands for payment
of discharged debts are prohibited.” Id. at 10. A creditor violates the discharge
injunction where it has notice of the debtor’s discharge, it intends the actions which
constituted the violation, and it acts in a coercive or harassing way. Id. at 9 (quoting
Lumb v. Cimenian (In re Lumb), 401 B.R. 1, 6 (B.A.P. 1st Cir. 2009). “Coercion” is
assessed under an objective standard, and whether a creditor acted in an objectively
coercive manner is determined on the specific facts of each case. Id. (quoting Bates
v. CitiMortgage, Inc. (In re Bates), 517 B.R. 395, 398 (Bankr. D.N.H. 2014)); see also
Pratt v. Gen. Motors Acceptance Co. (In re Pratt), 462 F.3d 14, 19 (1st Cir. 2006).
The Defendants argue that ASC’s written communications to Lamprey did not
violate the automatic stay or the discharge injunction because they were sent for
informational purposes only and did not actually demand payment from her.
Moreover, the Defendants argue, almost all of the written communications contained
disclaimers that disclosed, in clear and conspicuous language, that they should not
be construed as an attempt to collect a debt. ECF No. 13 at 8 (citing Best, 540 B.R.
at 11 (letters containing disclaimer did not violate the discharge injunction)).
The record contains several documents that undercut the Defendants’
argument. First, in June 2011, and again in June 2013, ASC sent Lamprey notices
stating that the interest rate on her mortgage loan had decreased and that the
interest-only installment due would be adjusted accordingly. See ECF No. 1-9; ECF
No. 1-23. The 2011 notice states that “[t]he new total payment . . . due on August 01,
2011 is $1,100.02,” ECF No. 1-9 (emphasis added), and the 2013 notice states that
“[t]he new total payment . . . due on August 01, 2013 is $1,420.59,” ECF No. 1-23
(emphasis added). Both documents implicate the automatic stay because they were
sent and received during the pendency of Lamprey’s chapter 13 bankruptcy. Both
documents contain the word “due,” which is a word that indicates an attempt to
collect a debt. See Lemieux v. Wells Fargo Home Mortgage (In re Lemieux), 520 B.R.
361, 366 (Bankr. D. Mass. 2014). Both documents state that a payment in a specified
amount is due on a specific date. Neither document contains a disclaimer.
Second, in June 2016, approximately one year after Lamprey was discharged
from bankruptcy, ASC sent her a Notice of Default and Right to Cure (the “Notice of
Default”) stating that “your loan . . . is in default for failure to make timely payments,”
and threatening to accelerate the now-discharged promissory note. ECF No. 1-58.
The notice itemized the past due payments on the note as well as late charges and
other fees; stated that Lamprey’s “[t]otal [d]elinquency as of June 30, 2016” was
$160,254.85; and threatened to accelerate the loan “[i]f funds are not received by
August 9, 2016.” Id. at 1. Because the Notice was sent and received after Lamprey’s
June 2015 bankruptcy discharge, this document implicates the discharge injunction.
Third, on September 21, 2016, the law firm of Bendett & McHugh, PC, sent
Lamprey a letter informing her that it had been retained by ASC.2 ECF No. 1-67.
The letter stated that $473,939.20 was owed on the promissory note and stated
further that “unless you, within thirty days after receipt of this notice, dispute the
validity of the debt . . . the debt will be assumed to be valid by us.” Id. at 1 (emphasis
The letter states that Bendett & McHugh had been retained by Wells Fargo Home Mortgage, which
does business as ASC. See ECF No. 1-67.
omitted). The letter continued, “The law firm of Bendett & McHugh, PC is a debt
collector and is attempting to collect a debt.” Id. at 2 (emphasis omitted). Because
it was sent and received after Lamprey’s June 2015 bankruptcy discharge, this
document implicates the discharge injunction.
Fourth, between April 2011 and July 2016, ASC sent Lamprey eleven notices
pertaining to a hazard insurance policy that it purchased for the Property in April
2011 and that it renewed periodically thereafter. ECF No. 1-8; ECF No. 1-15; ECF
No. 1-19; ECF No. 1-20; ECF No. 1-24; ECF No. 1-28; ECF No. 1-34; ECF No. 1-38;
ECF No. 1-52; ECF No. 1-55; ECF No. 1-59. Six of the hazard insurance notices stated
that the policy’s annual premium was being charged to Lamprey’s escrow account.
ECF No. 1-8; ECF No. 1-15; ECF No. 1-20; ECF No. 1-28; ECF No. 1-38; ECF No. 155. One notice also stated that Lamprey’s monthly mortgage payment would be
increased to include the cost of the policy, ECF No. 1-8, while another stated that
Lamprey would be responsible for the repayment of the premium, ECF No. 1-55.
Eight of the hazard insurance notices predated the bankruptcy discharge and
therefore implicate the automatic stay. See ECF No. 1-8; ECF No. 1-15; ECF No. 119; ECF No. 1-20; ECF No. 1-24; ECF No. 1-28; ECF No. 1-34; ECF No. 1-38. Three
hazard insurance notices post-dated the bankruptcy discharge and therefore
implicate the discharge injunction. See ECF No. 1-52; ECF No. 1-55; ECF No. 1-59.
Nine of the hazard insurance notices, the Notice of Default, and the Bendett &
McHugh letter contained disclaimers which state in pertinent part that if the
recipient had received a discharge in a bankruptcy case, then the communication was
merely being provided for informational purposes only. ECF No. 1-8; ECF No. 1-15;
ECF No. 1-19; ECF No. 1-20; ECF No. 1-24; ECF No. 1-28; ECF No. 1-38; ECF No. 155; ECF No. 1-58; ECF No. 1-59; ECF No. 1-67. This appears to be a recognition on
the part of ASC that any personal obligation on the part of Lamprey to pay debts
associated with the mortgage loan and/or the hazard insurance policy were
discharged as a result of the bankruptcy discharge.3 See Lemieux, 520 B.R. at 367
(citation omitted). Yet the same notices and letter convey messages that are at odds
with the disclaimers. See id. As noted above, the Notice of Default refers to the
mortgage loan as being “in default for failure to make timely payments,” alleges a
“[d]elinquency” of $160,254.85, and threatens to accelerate the loan if payment is not
received by a specific date. ECF No. 1-58 at 1. Three of the hazard insurance notices
contain the words “Action required” on the very first line, ECF No. 1-20; ECF No. 128; ECF No. 1-55, and all of the notices refer to Lamprey as being ultimately
responsible for repaying the insurance premium, see ECF No. ECF No. 1-8; ECF No.
1-15; ECF No. 1-20; ECF No. 1-28; ECF No. 1-55. Also, the Bendett & McHugh letter
states that the law firm was retained by Wells Fargo Home Mortgage and, in all
capital letters, that is a debt collector and is attempting to collect a debt, a statement
which is directly at odds with the disclaimer. See ECF No. 1-67.
Based upon these documents, I conclude that Lamprey has stated facially
plausible claims for violation of the automatic stay pursuant to 11 U.S.C.A. §
362(a)(6) and the discharge injunction pursuant to 11 U.S.C.A. § 524(a)(2). Therefore,
the Defendants’ motion to dismiss is denied as to Counts One and Two.
None of the disclaimers refer to the automatic stay or disclaim responsibility for attempting to
collect a debt during the pendency of Lamprey’s bankruptcy.
Other Claims (Counts Three, Four, and Five)
The Defendants argue that Lamprey’s claims for violation of the Maine
Consumer Credit Code, 9-A M.R.S.A. § 9-403, (Count Three) and the federal and
Maine Fair Debt Collection Practices Acts, 15 U.S.C.A. §§ 1692, et seq.; 32 M.R.S.A.
§§ 11001, et seq. (Counts Four and Five)4 should be dismissed under the doctrine of
res judicata; that her state law claims (Counts Three and Five) should be dismissed
under the doctrine of conflict preemption and field preemption; and that her federal
Fair Debt Collection Practices Act claim (Count Four) should be governed solely by
the Bankruptcy Court’s contempt power.
(1) Res Judicata
Lamprey argues that all of her rights and obligations in the Property were
extinguished at the end of the foreclosure redemption period pursuant to 14 M.R.S.A.
§ 6323 (2017), and, simultaneously, Bank of New York’s security interest was
converted into an ownership interest. ECF No. 15 at 10, 12 (citing In re Simcock, 152
B.R. 8-9 (Bankr. D. Me. 1993)). Consequently, she claims, the communications from
the Defendants to her after the end of the redemption period, when she had no further
personal liability on the loan and no further in rem liability relating to the Property,
amounted to attempts and threats to enforce a right that had been barred by final
The Complaint’s allegations of violations of the federal Fair Debt Collection Practices Act and the
Maine Fair Debt Collection Practices Act are pleaded together in a single section identified as
“COUNTS FOUR AND FIVE.” For the sake of clarity, this Order will refer to the federal Fair Debt
Collection Practices Act claim as “Count Four” and the Maine Fair Debt Collection Practices Act claim
as “Count Five.”
The Defendants argue that by identifying ASC as a secured creditor in her
Bankruptcy Plan, Lamprey represented to the Bankruptcy Court that ASC still held
a valid security interest in the Property.
Therefore, they claim, because the
Bankruptcy Court confirmed the Plan, the doctrine of res judicata applies and
operates to bar Lamprey from asserting in this action that ASC’s security interest in
the Property expired at the end of the foreclosure redemption period under state law.
ECF No. 13 at 12 (citing Layo v. First Nat’l Bank of New York (In re Layo), 460 F.3d
289, 293-95 (2d Cir. 2006)) (quotation omitted).
ASC’s argument mischaracterizes Lamprey’s Chapter 13 Plan. A Judgment of
Foreclosure and Sale (“Foreclosure Judgment”) was entered in the state court
proceeding on August 27, 2010. ECF No. 1-2 at 5. Lamprey’s Chapter 13 Plan, dated
October 15, 2010, identified ASC, Bank of America, and Northeast Credit Union as
secured creditors and reported that a foreclosure judgment had been entered against
their collateral, the Property. ECF No. 1-6 at 4. The Plan also stated that Lamprey
“consents to relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to permit
[ASC, Bank of America, and Northeast Credit Union] to enforce their state-law
interests against” the collateral. Id. at 3. Further, the Plan provided that any
resulting deficiency claim “will be treated as unsecured.” Id. ASC did not object to
the Plan and the Plan was confirmed by the Bankruptcy Court on January 11, 2011.
ECF No. 1-7.
Thus, under the Plan, the Bankruptcy Estate surrendered the property to ASC,
Bank of America, and Northeast Credit Union by releasing their claims from the
automatic stay and permitting them to proceed against the Property pursuant to the
Foreclosure Judgment. See ECF No. 1-6. The Plan’s characterization of ASC as a
secured creditor as of the date of the Plan—October 15, 2010—was accurate because
the foreclosure redemption period had not expired as of that date and ASC still held
a secured claim against the Bankruptcy Estate.5 Accordingly, as a consequence of
the Bankruptcy Court’s Confirmation Order dated January 11, 2011, ASC was left to
enforce its “state law interests” established by the Foreclosure Judgment, and it was
no longer a secured creditor of the Bankruptcy Estate. Contrary to ASC’s argument,
the Confirmation Order did not result in a res judicata bar to Lamprey’s claims
brought under the Maine Consumer Credit Code, 9-A M.R.S.A. § 9-403, and the
federal and Maine Fair Debt Collection Practices Acts, 15 U.S.C.A. §§ 1692, et seq.;
32 M.R.S.A. §§ 11001, et seq.
(2) Conflict Preemption
The Defendants claim that §§ 1322(b)(5) and 1322(c) of the Bankruptcy Code,
which allow a debtor to repay past due mortgage payments as part of a bankruptcy
plan over a three to five year period, give Lamprey a federal-law interest in the
Property that conflicts with 14 M.R.S.A. § 6323, which mandates that the mortgagor’s
interest terminates upon the end of the foreclosure redemption period. Therefore, the
Defendants argue that because Maine’s foreclosure law is in conflict with the
Bankruptcy Code, Counts Three and Five of Lamprey’s Complaint are barred by
conflict preemption, which occurs “when compliance with both federal and state
regulations is a physical impossibility.” Fla. Lime & Avocado Growers, Inc. v. Paul,
By operation of 11 U.S.C.A. § 108(b), the expiration of the redemption period was delayed until 60
days after the date of the Chapter 13 petition, which was filed October 12, 2010. Thus, the redemption
period expired December 11, 2010.
373 U.S. 132, 142-43 (1963); see also Friends of Merrymeeting Bay v. Olsen, 839 F.
Supp. 2d 366, 374 (D. Me. 2012). Lamprey argues that there is no conflict because §§
1322(b)(5) and 1322(c) are only applicable where the debtor has chosen to make use
of them, and she did not invoke either section in the Bankruptcy Plan.
The Defendants reply by citing the First Circuit’s opinion in Jamo for the
proposition that the court should focus on the effect of the state foreclosure statute
upon the entire Bankruptcy Code and not just upon the provisions that Lamprey
actually relied on in her bankruptcy petition.
This argument is unpersuasive
because, although Jamo does state that the Bankruptcy Code should be “read as a
whole,” Jamo, 283 F.3d at 399, the court’s decision says nothing about the interplay
between state law and federal law, or about § 1322 of the Bankruptcy Code, id.
Instead, the First Circuit in Jamo was concerned with the interplay of different
sections of the Bankruptcy Code, such as whether the automatic stay (§ 362(a)(6))
permitted creditors to negotiate reaffirmation agreements (§ 524(c)). Id. This case
does not concern a reaffirmation agreement, and there is no conflict presented with
respect to the Maine statute that governs the right of a mortgagee to sell unredeemed
property—14 M.R.S.A. § 6323—and the Bankruptcy Code provisions regarding a
debtor’s repayment of a mortgage—11 U.S.C.A. §§ 1322(b)(5) and 1322(c)—because
Lamprey did not seek to repay ASC’s mortgage as part of the Chapter 13 Plan.
Therefore, conflict preemption does not bar Counts Three and Five of Lamprey’s
(3) Field Preemption
The Defendants argue that Lamprey’s state-law claims are also preempted
under the theory of field preemption based upon First Circuit case law which
recognizes that “Congress clearly intended to occupy the field [of bankruptcy] to the
exclusion of state law,” ECF No. 13 at 16 (quoting Bessette v. Avco Fin. Servs., Inc.,
230 F.3d 439, 447 (1st Cir. 2000)), and that the Bankruptcy Code preempts “virtually
all alternative mechanisms for remedying violations of the Code,” id. (quoting
Bessette, 230 F.3d at 447 (emphasis omitted)). Field preemption applies where “the
scheme of federal regulation [is] so pervasive as to make reasonable the inference
that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947); see also Friends of Merrymeeting Bay, 839 F. Supp.
2d at 373.
Both decisions upon which the Defendants rely are readily distinguishable
from this case. In Bessette, the First Circuit addressed the issue of whether state law
remedies for unjust enrichment were preempted by the “congressional intent
evidenced in the comprehensive remedial scheme of the Bankruptcy Code.” Bessette,
230 F.3d at 447 (“[A]n alternative state court remedy for unjust enrichment in these
circumstances is inevitably in conflict with Congress’s plan that federal courts enforce
§ 524 through § 105.”). The decision does not address the topic of debtors’ property
interests arising under state law. Likewise, in Patriot Portfolio v. Weinstein (In re
Weinstein), the First Circuit concluded that certain exceptions to the Massachusetts
homestead exemption did not apply in bankruptcy and, therefore, a debtor could
avoid a creditor’s lien under § 522(f) of the Bankruptcy Code. 164 F.3d 677, 679 (1st
Cir. 1999). As with Bessette, in Weinstein the court did not address whether state law
provisions that would ordinarily cause Lamprey's rights in the Property to extinguish
are somehow preempted by the Bankruptcy Code. Because the Defendants have
failed to show that the Bankruptcy Code was explicitly or implicitly intended to
“occupy the field” regarding the rights of a creditor secured by a mortgage in real
estate, field preemption does not apply. See Bessette, 230 F.3d at 447.
(4) Additional Arguments Presented by the Defendants
The Defendants argue that Lamprey’s claim under the federal Fair Debt
Collection Practices Act (“FDCPA”) (Count Four) is precluded by the Bankruptcy
Code because her allegations arise out of alleged violations of the automatic stay and
the discharge injunction and, therefore, her remedy ought to be governed solely by
the Bankruptcy Court’s contempt power. They contend that to allow Lamprey a
private right of action for allegedly improper communications via the FDCPA would
circumvent the purpose of the Bankruptcy Code. This argument is unconvincing
because the Bankruptcy “Code and the FDCPA are not irreconcilable and creditors
are under the obligation to follow both.” Martel v. LVNV Funding, LLC (In re Martel),
539 B.R. 192, 198 (Bankr. D. Me. 2015); see also Randolph v. IMBS, Inc., 368 F.3d
726, 730 (7th Cir. 2004) (stating that the Bankruptcy Code and the FDCPA “do not .
. . add up to irreconcilable conflict; instead the two statutes overlap . . . . It is easy to
enforce both statutes, and any debt collector can comply with both simultaneously”).
Finally, the Defendants argue that the communications sent to Lamprey would
not cause even the most unsophisticated hypothetical consumer to believe that the
Defendants were attempting to collect a debt. ECF No. 13 at 18-19 (citing Pollard v.
Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014)). As previously
discussed, however, multiple letters and notices sent by the Defendants to Lamprey
referred to payments being “due”; cited six-figure dollar amounts that were alleged
to be delinquent; threatened acceleration of the loan if payment was not received by
a specific date; warned Lamprey that she would be responsible for repaying the cost
of a force-placed hazard insurance policy; and identified debt collectors who had been
retained by the Defendants for the purpose of collecting a debt. See ECF No. 1-8;
ECF No. 1-9; ECF No. 1-15; ECF No. 1-20; ECF No. 1-23; ECF No. 1-28; ECF No. 155; ECF No. 1-58; ECF No. 1-67. These facts, in addition to the inferences I draw in
Lamprey’s favor at the motion to dismiss stage, lead me to conclude that Lamprey
has plausibly alleged a claim for violation of the federal Fair Debt Collection Practices
A defendant who brings a motion to dismiss must establish that the plaintiff
failed to allege a claim that is plausible on its face. See Iqbal, 556 U.S. at 678. For
the reasons explained above, I conclude that the Defendants have not met this
burden, and consequently, their Motion to Dismiss (ECF No. 12) is DENIED.
Dated this 11th day of August 2017.
/s/ JON D. LEVY
U.S. DISTRICT JUDGE
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