Martinez v. Sun Life Assurance Company of Canada
District Judge Leo T. Sorokin: ORDER entered.ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS( Doc. No. 25, 67): Sun Life's Motion for Judgment on the Pleadings (formerly a 25 Motion to Dismiss) is ALLOWED in its entirety. The Clerk shall enter Judgment infavor of Defendant and against Plaintiff on all claims, pursuant to this Order and the Court's prior Order, Doc. No. 65, with each side to bear its own fees and costs. (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Case No. 16-cv-12154-LTS
SUN LIFE ASSURANCE CO. OF CANADA,
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS
(DOC. NO. 25, DOC. NO. 67)
October 16, 2018
Plaintiff Marco Martinez asserts seven claims against Defendant Sun Life Assurance
Company of Canada (“Sun Life”) for discrimination on the basis of his status as a veteran and
recovery of disability benefits which he claims are owed to him. Doc. No. 1.
For the reasons
that follow, Sun Life’s motion for judgment on the pleadings is ALLOWED in its entirety.
Plaintiff Marco Martinez is a United States veteran who was diagnosed with multiple
sclerosis in 2009. Doc. No. 1 ¶¶ 36-37. From 2010 to 2012, Martinez was employed by the
Athens Group, where he held the position of Senior System Administrator. Id. ¶ 37. Plaintiff
and other Athens Group employees participated in an “ERISA-covered disability plan…by
which their benefits [were] provided pursuant to a group long-term disability…insurance
policy.” Id. ¶ 1. This long-term disability (“LTD”) policy (the “Plan”) was offered by Sun Life.
Id. In November 2012, Martinez began receiving LTD benefits under the Plan due to his
multiple sclerosis. Id. ¶ 60.
In January 2015, the United States Department of Veterans Administration (the “VA”)
granted Martinez’s claim for Veterans Disability Benefits under the Veterans’ Benefits Act, 1
based on his diagnosis of multiple sclerosis, which entitled Martinez to benefits beginning
seventeen months earlier, in August, 2013. Id. ¶¶ 70-73. After Sun Life learned of the VA
award, it informed Martinez by letter that it would offset his disability payments, as the VA
award constituted “Other Income Benefits” under the Plan. Id. ¶¶ 74-76. Martinez sued Sun
Life alleging discrimination and a number of ERISA violations based on this offset.
Martinez asserts seven claims in his complaint. Count I alleges discrimination under the
Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), based
on the offset of Martinez’ LTD benefits by the amount of his VA award. Id. ¶¶ 146-56. Count
II alleges a claim for wrongly denied benefits under ERISA based on the same offset of LTD
benefits. Id. ¶¶ 157-66. Count III alleges a breach of a fiduciary duty under ERISA based on the
offset of LTD benefits. Id. ¶¶ 167-73. Count IV alleges a breach of co-fiduciary duty under
ERISA based on the offset of LTD benefits. Id. ¶¶ 174-96. Count V alleges a violation of the
Veterans’ Benefits Act based on the offset of LTD benefits. Id. ¶¶ 197-203. Count VI seeks a
declaratory judgment that prevents Sun Life from bringing a civil action under ERISA to recover
the amount of the offset of LTD benefits. Id. ¶¶ 204-13. Count VII alleges knowing
participation in a fiduciary breach by a non-fiduciary based on the offset of LTD benefits. Id.
38 U.S.C. § 101 et seq. See Hannigan v. Sun Life and Health Ins. Co., 711 F.3d 226, 231 n.14
(1st Cir. 2013) (“Like other courts to consider the issue, […] we believe that the Veterans’
Benefits Act begins at 38 U.S.C. § 101 and encompasses all of Title 38 (Veterans’ Benefits).”).
The crux of Martinez’s argument is that VA benefits are not listed within the “Other
Income Benefits” section of the Plan, and thus when Sun Life offset his LTD benefits by the
amount of his VA award, it violated the Plan. See Id. at 9. Section 1 of the Plan provides that
“Other Income Benefits” include:
The amount the Employee is eligible for under:
a. Worker’s Compensation Law; or
b. Occupational Disease Law; or
c. Unemployment Compensation Law; or
d. Compulsory Benefit Act or Law; or
e. an automobile no-fault insurance plan; or
f. any other act or law of like intent.
Id. ¶ 51.
Sun Life initially moved to dismiss the complaint in its entirety under Rule 12(b)(6).
Doc. No. 25. The Court ordered a filing of the administrative record and denied without
prejudice the Motion to Dismiss, based on the schedule proposed by the parties. Doc. No. 37.
The Court considered and denied Martinez’s motion for discovery on Count II. Doc. No. 46.
Thereafter, Sun Life moved for summary judgment on Count II of the complaint. Doc. No. 52.
The Court allowed summary judgment as to Count II, finding that VA benefits were
unambiguously included in “Other Income Benefits” under section 1.d., a Compulsory Benefit
Act or Law. Doc. No. 65 at 5-6.
In response to the Court’s summary judgment order, the parties jointly requested that the
Court treat the Defendant’s original Rule 12(b)(6) motion to dismiss as a live Rule 12(c) motion
for judgment on the pleadings, in order to resolve the remaining six claims. Doc. No. 67. The
Court adopted the parties’ proposal and allowed additional briefing, which the parties have now
The standard for evaluating a motion for judgment on the pleadings is essentially the
same as the standard for evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), except
that “[a] Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole.”
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). To survive a motion to
dismiss under Rule 12(b)(6), “a 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court “must accept
all well-pleaded facts alleged in the Complaint as true and draw all reasonable inferences in
favor of the plaintiff.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The Court “may
augment these facts and inferences with data points gleaned from documents incorporated by
reference into the complaint, matters of public record, and facts susceptible to judicial notice.”
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citing In re Colonial Mortg. Bankers
Corp., 324 F.3d 12, 15 (1st Cir. 2003).
The Court draws all reasonable inferences in Plaintiff’s favor in resolving the pending
motion for judgment on the pleadings, and has before it the Plan, Doc. No. 27-1, which is
incorporated by reference into the complaint. Furthermore, the Court looks to its prior ruling
regarding the plain meaning of the policy, announced in the Order on Motion for Summary
Judgment, Doc. No. 65. The Court’s prior ruling on the plain meaning of the policy applies to
the pending motion for the following reasons.
First, “[u]nder the law of the case doctrine, ‘unless corrected by an appellate tribunal, a
legal decision made at one stage of a civil or criminal case constitutes the law of the case
throughout the pendency of the litigation.’” Latin Am. Music Co. Inc. v. Media Power Grp.,
Inc., 705 F.3d 34, 40 (1st Cir. 2013) (quoting Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 25
(1st Cir. 1997)). Second, nothing in the briefing suggests to the Court that the ruling requires
reconsideration. Finally, the Court’s ruling on the plain meaning of the policy did not depend on
any facts beyond the four corners of the policy itself, which is properly before the Court in this
motion, as a document incorporated by reference into the complaint.
Count I: Claim for Discrimination Under USERRA
Martinez asserts a claim for discrimination under USERRA § 4311, which reads in
A person who is a member of, applies to be a member of, performs, has performed,
applies to perform, or has an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer on the basis of that
membership, application for membership, performance of service, application for
service, or obligation.
38 U.S.C. § 4311(a). In addition, § 4303 defines the term “benefit of employment” as:
[T]he terms, conditions, or privileges of employment, including any advantage,
profit, privilege, gain, status, account, or interest (including wages or salary for
work performed) that accrues by reason of an employment contract or agreement
or an employer policy, plan, or practice and includes rights and benefits under a
pension plan, a health plan, an employee stock ownership plan, insurance coverage
and awards, bonuses, severance pay, supplemental unemployment benefits,
vacations, and the opportunity to select work hours or location of employment.
38 U.S.C. § 4303(2). Martinez asserts in the complaint that Sun Life’s practice of “adopting and
applying a policy of reducing LTD Benefits in the amount of Veterans Disability Benefits”
constitutes a denial of certain benefits to veteran employees “as a result of their membership or
performance in a uniformed service.” Doc. No. 1 ¶¶ 154-55.
The First Circuit has held that “in USERRA actions there must be an initial showing by
the employee that military status was at least a motivating or substantial factor in the employer
action, upon which the employer must prove, by a preponderance of evidence, that the action
would have been taken despite the protected status.” Velazquez-Garcia v. Horizon Lines Of
Puerto Rico, Inc., 473 F.3d 11, 17 (1st Cir. 2007) (internal citations omitted). Martinez argues
that “he was denied a benefit of his employment – namely greater disability benefits” as “a result
of his service in the military – namely his receipt of benefits that he only received as a result of
his military service.” Doc. No. 31 at 12. However, the plain language of the Plan does not
distinguish between service members and non-service members. As Sun Life notes, “[i]n
calculating the amount of benefits due, the [Plan] uniformly required Sun Life to include benefits
received from multiple third party sources for the same disability.” Doc. No. 28 at 4. 2
As this Court has previously found that the VA benefits which Martinez received are
“compulsory,” Sun Life properly considered them “Other Income Benefits” under the Plan. Doc.
No. 65 at 5. Accordingly, offsetting Martinez’ LTD benefits by the amount of VA benefits he
Martinez relies on Rimbey v. Mucky Duck, Inc., a case from the Middle District of Florida, to
support his argument that Sun Life’s decision to offset his LTD benefits was a denial of a benefit
of employment based on his status as a veteran. Case No. 2:17-cv-103-FtM-99MRM, 2017 WL
2812507 (M.D. Fla. June 29, 2017). In Rimbey, upon learning of the plaintiff’s award of VA
benefits, the plaintiff’s employer reduced his weekly salary by the amount of VA benefits he was
receiving. Id. at *1. Martinez argues: “[s]ubstitute the words ‘pay’ or ‘salary’ with the words
‘LTD benefits,’ and this decision applies precisely to Plaintiff’s claim here.” Doc. No. 72 at 3.
Rimbey, however, is distinguishable from this case. Sun Life did not offset Martinez’ LTD
benefits because they found out he was a veteran; Sun Life offset his benefits because they found
out he was receiving benefits for the same disability from other sources. Doc. No. 28 at 5. In
fact, Martinez’ complaint notes that his LTD benefits were also offset by “the amount he was
awarded in SSDI benefits” for the same disability. Doc. No. 1 at 64.
received was an application of the plain language of the Plan, not an act of discrimination under
USERRA. Sun Life’s motion for judgment on the pleadings is therefore ALLOWED as to Count
Count III: Claim for Breach of Fiduciary Duty under ERISA § 404
Martinez also asserts a claim under ERISA § 404(a)(1), subsections (A), (B), and (D),
based on the breach of a fiduciary duty. The statutory language upon which Martinez relies
(a) Prudent man standard of care
(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a
fiduciary shall discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and-(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries;
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims; …
(D) in accordance with the documents and instruments governing
the plan insofar as such documents and instruments are consistent
with the provisions of this subchapter and subchapter III.
29 U.S.C. §1104(a)(1)(A), (B), (D). The basis for Martinez’s claim is that “Sun Life, as a
fiduciary[,] had an obligation to follow the terms of the Plan, to the extent that those terms were
consistent with ERISA.” Doc. No. 1 ¶ 169. Furthermore, Martinez asserts that “[n]o prudent
and loyal fiduciary would have interpreted the Sun Life Policy to provide for an offset by the
amount of Veterans Disability Benefits where no such exclusion was provided under the Policy.”
Sun Life also argues that it cannot be held liable under USERRA because it is not an
“employer” under the statute. Doc. No. 28 at 7. Sun Life asserts that “[n]o court has applied
USERRA to an insurer under these circumstances.” Doc. No. 28. Because Plaintiff’s claim fails
even if Sun Life is considered an employer, the Court does not decide the question of whether
Sun Life can properly be considered an employer under USERRA.
Id. ¶ 171. Martinez also seeks “an order requiring disgorgement of any profits earned by
Defendant Sun Life on benefits wrongfully withheld or untimely distributed under the terms of
the governing Plan or prejudgment interest” and an injunction “requiring Defendant Sun Life to
administer the Plan without applying an offset for Veterans Disability Benefits.” Id. ¶ 173.
However, the “law of the case” is this Court’s order on summary judgement regarding
Count II, which finds that the VA benefits Martinez received “fall within the reach of the Plan
language Sun Life invoked to support the offset (‘Compulsory Benefit Act or Law’).” Doc. No.
65 at 6. Sun Life properly followed the terms of the Plan when it offset Martinez’ LTD benefits
by the amount he received in VA benefits. As such, the claim that Sun Life violated its fiduciary
duty under ERISA must fail. Accordingly, Sun Life’s motion for judgment on the pleadings is
ALLOWED as to Count III.
Count IV: Claim for Co-Fiduciary Liability Under ERISA § 405
Martinez’s fourth claim asserts that Defendant is liable for a breach of co-fiduciary duty
based on the fact that the Athens Group did not explicitly disclose that VA benefits were
included within “Other Income Benefits.” Id. ¶¶ 174-96. ERISA imposes co-fiduciary liability
in the following circumstances:
(1) if he participates knowingly in, or knowingly undertakes to conceal, an act or
omission of such other fiduciary, knowing such act or omission is a breach;
(2) if, by his failure to comply with section 1104(a)(1) of this title in the
administration of his specific responsibilities which give rise to his status as a
fiduciary, he has enabled such other fiduciary to commit a breach; or
(3) if he has knowledge of a breach by such other fiduciary, unless he makes
reasonable efforts under the circumstances to remedy the breach.
29 U.S.C. § 1105(a). Martinez’s complaint asserts that the Athens Group is a fiduciary
because of its role as Plan Administrator. Doc. No. 1 ¶¶ 177, 180. Martinez also asserts
that the Athens Group breached its fiduciary duty under ERISA because the “summary
plan description”—also referred to as the “Certificate”—“does not contain language that
could be reasonably calculated to be understood by the average plan participant to
identify Veterans Disability Benefits to be income eligible to be offset under the terms of
the Policy.” Id. ¶ 186. Martinez’s claim against Sun Life under this count may only
stand if the Athens Group breached a fiduciary duty; otherwise, no co-fiduciary liability
attaches to Sun Life.
Like the Plan, the Certificate is properly incorporated by reference into the
complaint, and the Court considers its text in order to resolve the pending motion. 4
Martinez’s argument that the average plan participant would not understand the
Certificate to indicate that VA benefits were a form of income eligible to be offset is
answered by looking to the Court’s previous summary judgment ruling as the “law of the
case.” The Court previously held that “the average person reading Section 1.d. would
comprehend that the provision encompasses unidentified types of benefits which
constitute compulsory benefits, because the subsection does not name any particular type
of compulsory benefit.” Doc. No. 65 at 7 (emphasis in original). Furthermore,
“[w]hereas Martinez’s VA benefits fall squarely within the category named in Section
1.d., failure to identify specifically VA benefits does not preclude their offset.” Id.
Because there was no failure to disclose the terms of the Plan and no violation of the
language of the Plan, there was no fiduciary breach by Athens Group which can support a
Martinez discusses the Certificate at length in the complaint, and specifically asserts that the
“only description in the Certificate of the types of income that may be offset against LTD
Benefits is the word-for-word quotation of the entire Other Income Benefits Provision found in
the Sun Life LTD Policy.” Doc. No. 1 ¶ 103.
co-fiduciary breach by Sun Life. Therefore, Sun Life’s motion for judgment on the
pleadings is ALLOWED as to Count IV.
Count V: Violation of the Veterans’ Benefits Act
Martinez’s fifth count alleges that Defendant Sun Life violated the Veterans’ Benefits
Act by seeking to recover an amount equivalent to the amount of VA benefits he received. Doc.
No. 1 ¶ 202. The Veterans’ Benefits Act states:
Payments of benefits due or to become due under any law administered by the
Secretary shall not be assignable except to the extent specifically authorized by law,
and such payments made to, or on account of, a beneficiary shall be exempt from
taxation, shall be exempt from the claim of creditors, and shall not be liable to
attachment, levy, or seizure by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary. The preceding sentence shall not
apply to claims of the United States arising under such laws nor shall the exemption
therein contained as to taxation extend to any property purchased in part or wholly
out of such payments. The provisions of this section shall not be construed to
prohibit the assignment of insurance otherwise authorized under chapter 19 of this
title, or of servicemen's indemnity.
38 U.S.C. § 5301(a)(1). It is undisputed that Veterans Disability Benefits constitute a “benefit
due…under [a] law administered by the Secretary,” Doc. No. 1 ¶ 199, and thus are not subject to
attachment by a creditor.
However, Martinez’s claim is based on his assertion that “[u]pon learning that Plaintiff
and members of the Class have received their Veterans Disability Benefits, Defendant Sun Life
sends a letter, such as the one sent to Plaintiff, demanding payment of the amount that Plaintiff,
and upon information and belief, other members of the Class received in Veterans Disability
Benefits.” Id. ¶ 200. Martinez continues, “[i]n the event that the participant fails to pay their
Veterans Disability Benefits to Sun Life, Defendant Sun Life will suspend the participants LTD
Benefits, as was done with Plaintiff, or upon information and belief engage in efforts to collect
the monies received as Veterans Disability Benefits.” Id. Martinez seeks a declaratory judgment
ruling that § 5301 prevents Sun Life from recovering his VA benefits, as well as recovery of “all
the Veterans Disability Benefits seized or recovered by Defendant Sun Life.” Id. ¶ 203.
Martinez claims Sun Life is “a creditor within the meaning of 38 U.S.C. § 5301.” Id. ¶
201. However, Sun Life does not attempt to “attach, levy, or seiz[e]” the VA benefits awarded
to Plan participants like Martinez. 38 U.S.C. § 5301(a)(1). Rather, Sun Life takes into account
the VA benefits later awarded for the same disability during the same period of time for which it
already disbursed LTD benefits, and offsets future LTD payments to account for the previous
As Sun Life notes, Martinez cites “zero cases holding that §5301 prohibits offsetting
Veteran’s Disability Benefits or prohibits withholding other benefits as a means of recovering
overpayments.” Doc. No. 34 at 17. However, the First Circuit considered a case similar to this
one, where an insurance company sought to recoup an overpayment of LTD benefits based on
the plaintiff’s subsequent award of SSDI benefits. Cusson v. Liberty Life Assur. Co. of Boston,
592 F.3d 215 (1st Cir. 2010), abrogated on other grounds by Montanile v. Bd. of Trustees of Nat.
Elevator Indus. Health Benefit Plan, 136 S. Ct. 651 (2016). 5 The court in Cusson held that the
insurance company, Liberty, was “not attempting to recover [plaintiff’s] SSDI benefits” but
instead was seeking to “recover in equity from funds Liberty itself already paid under the LTD
plan.” Id. at 232. Even though “the amount in question happen[ed] to be the same as the
The Supreme Court, in Montanile, considered the question of “whether an ERISA fiduciary can
enforce an equitable lien against a defendant’s general assets under [the] circumstances.”
Montanile, 136 S. Ct. at 656. It did not abrogate, or even discuss, the First Circuit’s conclusion
that recovery of an amount equal to the SSDI benefits awarded, which constituted LTD benefits
overpaid by the insurance company, did not constitute a recovery of the SSDI benefits
amount of [plaintiff’s] retroactive SSDI payment,” the First Circuit held that “the funds Liberty
[was] targeting [did] not come from SSDI.” Id.
The First Circuit’s reasoning in Cusson is directly applicable to this case. Sun Life is
attempting to recover an amount equal to Martinez’s retroactive VA award, but the funds it is
targeting are not those from the VA. Rather, Sun Life is targeting the funds it previously
disbursed to Martinez as an overpayment of LTD benefits. Therefore, Sun Life’s motion for
judgment on the pleadings is ALLOWED as to Count V.
Count VI: Declaratory and Injunctive Relief Under ERISA
Martinez brings his sixth claim under 28 U.S.C. §§ 2201-02, seeking a declaratory
judgment that Sun Life may not bring a civil action under ERISA § 502(a)(3). 6 Section
502(a)(3) permits a civil action to be brought
by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to enforce any
provisions of this subchapter or the terms of the plan
29 U.S.C. § 1132(a)(3). Martinez asks the Court to issue a declaratory judgment that “the Sun
Life Policy does not contain language sufficient to constitute an equitable lien by agreement
and/or that Defendant Sun Life is not entitled to seek to recoup any alleged overpayments
without a showing that the overpayment does in fact remain in participants’ or beneficiaries’
possession or is otherwise traceable.” Doc. No. 1 ¶ 213. Martinez also seeks an “order requiring
Sun Life to disgorge any monies that were collected from participants from assets that were not
traceable to their alleged overpayments.” Id. However, Martinez does not assert that Sun Life
In the complaint, Martinez cites this section of ERISA as 29 U.S.C. § 1102(a)(3); however, the
Court notes that the corresponding section of the U.S. Code is 29 U.S.C. § 1132(a)(3). As such,
the Court decides Count VI of the complaint under § 1132(a)(3).
has at any point attempted to bring a civil action against him pursuant to ERISA § 502(a)(3), and
Sun Life affirmatively denies having brought any such action. Doc. No. 34 at 18.
The question presented by Count VI is whether Sun Life may seek to recoup past
overpayments by reducing future LTD benefits. Courts in several other circuits have held that
ERISA § 502(a)(3) does not apply to reductions of future payments, but rather only addresses
equitable relief in the form of “civil actions.” See Northcutt v. Gen. Motors Hourly-Rate
Employees Pension Plan, 467 F.3d 1031, 1038 (7th Cir. 2006) (holding that reducing future
benefits due under a contract to offset the existing debt owed did not constitute “civil action”
under ERISA § 502); Shaffer v. Rawlings Co., 424 F. App'x 422, 425 (6th Cir. 2011) (holding
that ERISA § 502 “pertains only to judicial remedies—the kind of relief that may be sought in
judicial proceedings”). Though not binding, these decisions are persuasive. Therefore, Sun
Life’s motion for judgment on the pleadings is ALLOWED as to Count VI.
Count VII: Knowing Participation in a Fiduciary Breach Under ERISA
Martinez’s seventh and final claim is brought pursuant to ERISA § 502(a)(3), and alleges
that “[b]y providing the description of income eligible for offset in the Certificate to…Athens
Group, Defendant Sun Life knowingly participated in and enabled the Plan Administrators’
breach of their fiduciary duty.” Doc. No. 1 at 216. Martinez seeks an injunctive order requiring
Defendant “to disgorge wrongfully withheld or recovered LTD Benefits in its possession as well
as the proceeds and/or profits made on those funds, and/or the fees and/or premiums it received
for its services in drafting and providing the Certificate.” Doc. No. 1 ¶ 217.
As there was no fiduciary breach by Athens Group based on the information contained in
the Certificate, Martinez’s claim that Sun Life knowingly participated in a fiduciary breach must
fail. Therefore, for the same reasons that Martinez’s fourth claim cannot withstand the motion to
dismiss, neither can his seventh claim. As such, Sun Life’s motion for judgment on the
pleadings is ALLOWED as to Count VII.
Accordingly, Sun Life’s motion for judgment on the pleadings, Doc. No. 67, formerly a
motion to dismiss, Doc. No. 25, is ALLOWED in its entirety. The Clerk shall enter Judgment in
favor of Defendant and against Plaintiff on all claims, pursuant to this Order and the Court’s
prior Order, Doc. No. 65, with each side to bear its own fees and costs.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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