Ludwick v. Harbinger Group, Inc. et al

Filing 60

ORDER granting 23 Defendants' Motion to Dismiss. Signed on 2/12/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
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) Case No. 15-00011-CV-W-DGK
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Dale R. Ludwick, on behalf of Herself and
All Others Similarly Situated
Plaintiff,
v.
Harbinger Group, Inc., et al.,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This is a putative class action seeking damages for violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”). Pending before the Court is Defendants’ Motion to
Dismiss for Failure to State a Claim under Rule 12(b)(6) (Doc. 23). Because the matter before
the Court can be decided upon the written motion and suggestions, the parties’ request for oral
argument is denied. See Local Rule 7.0(b) (granting request for oral argument is at the discretion
of the Court).

The Court finds that the McCarran-Ferguson Act bars Plaintiff’s claims.

Therefore, Defendants’ motion is GRANTED.
Standard
A complaint may be dismissed if it fails “to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). In reviewing the adequacy of a complaint, a court assumes
that the factual allegations in the complaint are true and construes them in the light most
favorable to the plaintiff. Data Mfg. Inc. v. UPS, Inc., 557 F.3d 849, 851 (8th Cir. 2009).
While courts will accept plaintiff’s factual allegations as true, a court must “reject conclusory

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allegations of law and unwarranted inferences.” Silver v. H&R Block, Inc., 105 F.3d 394, 397
(8th Cir. 1997).
Factual Background
Plaintiff Dale R. Ludwick’s (“Plaintiff”) Complaint alleges the following facts, which the
Court assumes to be true for purposes of resolving the motion to dismiss. Plaintiff names four
Defendants: F&G Life Insurance Company (“F&G”), Harbinger Group, Inc. (“Harbinger”),
Raven Reinsurance Company (“Raven Re”), and Front Street Re (Cayman), Ltd. (“Front Street
Cayman”).
Plaintiff Dale R. Ludwick and those similarly situated have purchased annuities1 from
Defendant F&G since April 6, 2011. Compl. 1 (Doc. 1). Defendant Harbinger acquired F&G
(then named OM Financial Life Insurance Group) on April 6, 2011. Id. at ¶ 124-125. F&G was
domiciled in Maryland, and became a domiciliary of Iowa on November 1, 2013. Id. at ¶ 27.
Plaintiff alleges that F&G, Harbinger, and Harbinger’s chairman and CEO, Philip A.
Falcone (“Falcone”), created a fraudulent accounting scheme to hide F&G’s liabilities and
artificially inflate F&G’s reported assets.

Id. at ¶ 7.

This scheme ignored the Statutory

Accounting Principles (“SAPs”) promulgated by the National Association of Insurance
Commissioners (“NAIC”) designed to protect annuity holders and certify that F&G had assets
sufficient to meet current and future annuity holder obligations. Id. at ¶¶ 3, 7. Harbinger and
Falcone orchestrated a series of transactions using wholly-owned captive subsidiaries2 and a

1

Annuity insurance is an “agreement to pay the insured (or annuitant) for a stated period or for life.” Black’s Law
Dictionary 920 (10th ed. 2014). The value of the annuity to a purchaser is the present value of the projected future
stream of payments discounted to reflect, among other things, the risk of non-payment by the insurance company
(Doc. 1 at ¶ 42).
2

Captive insurance is defined as “[i]nsurance that a subsidiary provides to its parent company, usu. so that the
parent company can deduct the premiums set aside as loss reserves.” Black’s Law Dictionary, supra, at 920.

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reinsurance3 company named Wilton Re to transfer F&G’s liabilities from its financial
statements. Id. at ¶ 8. Throughout 2011, 2012, and 2013, F&G created a false appearance of
capital adequacy by transferring F&G liabilities to and among entities Raven Re, Front Street
Cayman, and Wilton Re. Id. at ¶ 9. F&G also used these transactions to report its holdings of
non-agency mortgage-backed securities in its admitted asset base at cost, rather than at their true
market value. Id. at ¶ 11. Plaintiff contends that, absent these financial maneuvers, F&G would
have had to report a negative statutory surplus after its acquisition by Harbinger. Id. at ¶ 14.
Specifically, Plaintiff alleges the following four financial maneuvers were fraudulently
misrepresented in F&G’s 2011, 2012, and 2013 annual reports. First, Plaintiff alleges the
“Raven Re transaction” was fraudulent. In 2011, F&G formed Raven Re as a wholly-owned
captive reinsurance company. Id. at ¶ 136. In 2012, F&G ceded millions of dollars in reserve
credit liabilities to Raven Re. Id. at ¶ 166. This transaction increased F&G’s reported surplus in
2012 and 2013. Id. at ¶¶ 162-66, 175-76. Plaintiff contends this transaction was not arm’slength, as required by the NAIC SAPs, because Raven Re had no independent ability to pay the
reserve liability F&G ceded to it. Id. at ¶¶ 79, 161-66. The real purpose of this transaction was
to allow F&G to use a letter of credit4 facility as an admitted asset to reduce liabilities. Id. at ¶
137-40, 164-65. F&G represented in its annual report that it followed all NAIC SAPs, yet the
treatment of this letter of credit facility as an admitted asset actually did not follow the SAPs. Id.
at ¶¶ 164-67.

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Reinsurance is “[i]nsurance of all or part of one insurer’s risk by a second insurer, who accepts the risk in
exchange for a percentage of the original premium.” Id. at 1477.
4

A letter of credit is an instrument under which the issuer agrees to honor a draft or other demand for payment made
by a third party (the beneficiary), as long as the draft or demand complies with specified conditions, and regardless
of whether any underlying agreement is satisfied. Id. at 923. There are multiple forms a letter of credit may take,
depending on the underlying agreement of the parties. See id. at 923-24 (listing definitions for a “clean” letter of
credit and an “irrevocable” letter of credit, among others).

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Second, Plaintiff contends F&G’s claim of Raven Re stock as an admitted asset to
increase F&G’s reported surplus (“Raven Re stock transaction”) was fraudulent. Id. at ¶ 167.
Defendant F&G claimed the stock had a positive value in 2012 and 2013 even though Raven Re
was insolvent and its stock had no value. Id. This accounting practice inflated F&G’s surplus
and risk-based capital levels beyond what would have been reported had F&G followed the
NAIC SAPs. Id. at ¶¶ 141-42, 164, 167.
Third, Plaintiff alleges Defendants had F&G enter into a large reinsurance transaction in
2012 with an affiliated entity in the Cayman Islands, Front Street Re (“Front Street Re
transaction”).

Id. at ¶¶ 168-73.

Harbinger formed Front Street Re in 2012 and F&G

subsequently ceded over $1 billion in liabilities to Front Street Re on December 31, 2012. Id. at
¶ 169. F&G claimed a reserve credit for liabilities transferred to Front Street Cayman, a whollyowned subsidiary of Front Street Re. Id. at ¶ 170. However, no assets were transferred to Front
Street Cayman or Front Street Re, as the reinsurance transaction was implemented on a funds
withheld basis. Id. at ¶ 171. Through this transaction, F&G enhanced its report surplus and riskbased capital levels without transferring to Front Street Cayman actual and valuable assets
proportionate to its transfer of liabilities. Id. at ¶ 172.
Finally, Plaintiff asserts that Defendants falsely inflated F&G’s surplus and risk-based
capital through two reinsurance transactions with Wilton Re (“Wilton Re transactions”). Id. at
¶¶ 147, 152-55. On April 8, 2011, Defendant F&G ceded $651 million of reserve liabilities and
sent only $543 million in assets to Wilton Re, recognizing a net gain of $114 million. Id. at ¶
147. In October of 2011, Defendants ceded $927 million in liabilities to Wilton Re and took the
corresponding reduction in its reserve liabilities. Id. at ¶ 152. F&G sent only $427 million in
assets and a negative ceding commission of $135 million to Wilton Re. Id. at ¶ 153. F&G

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reported a $365 million gain in surplus following this transaction. Id. Plaintiff alleges that these
transactions are an attempt to take advantage of “the fact that regulators typically never question
reinsurance transactions with authorized and unaffiliated entities.” Id. at ¶ 154. F&G could not
claim reserve credits to reduce its liabilities for either of these transactions under the NAIC
SAPs. Pl.’s Br. 11 (Doc. 31).
Plaintiff claims damages in the amount overpaid for annuities that were riskier and less
valuable than represented and accrued account values lower than the values that would have been
realized absent these transactions. Id. at 13. Plaintiff alleges an overpayment of $6,256 at the
point of sale in September of 2013. Id.
Discussion
The Complaint asserts the four transactions above violate two separate provisions of
RICO, 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d). Defendants contend Plaintiff cannot
maintain a RICO claim because, under the McCarran-Ferguson Act, Plaintiff’s claim
impermissibly interferes with state statutory and regulatory insurance schemes.
The McCarran-Ferguson Act states that “[n]o Act of Congress shall be construed to
invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the
business of insurance…unless such Act specifically relates to the business of insurance.” 15
U.S.C. § 1012(b). In other words, the McCarran-Ferguson Act bars the application of a federal
statute if: (1) the federal statute does not relate specifically to the business of insurance, (2) a
state statute has been enacted to regulate the business of insurance, and (3) the federal statute
would invalidate, impair, or supersede the state statute. LaBarre v. Credit Acceptance Corp.,
175 F.3d 640, 643-43 (8th Cir. 1999).

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First, RICO does not specifically relate to the business of insurance. Humana, Inc. v.
Forsyth, 525 U.S. 299, 307 (1999). Second, Missouri and Iowa have enacted comprehensive
statutory schemes to regulate the business of insurance.5 See Mo. Rev. Stat. § 375.001 et seq.;
Iowa Code § 505 et seq.; Saunders v. Farmers Ins. Exch., 537 F.3d 961, 965 (8th Cir. 2008)
(“Like most States, Missouri thoroughly regulates the business of insurance.”). The remaining
question is whether the application of RICO would “invalidate, impair, or supersede” the
statutory schemes of Missouri and Iowa.
Plaintiff first contends that these RICO claims would not intrude upon the states’
insurance regulation schemes because Plaintiff’s claim is premised on Defendants’ false
representation of compliance with the NAIC SAPs, not the regulatory decisions regarding the
underlying reinsurance transactions. Second, Plaintiff asserts there is no preemption when state
common law provides causes of action and remedies for the fraudulent acts that exceed RICO’s
treble damages. Third, Plaintiff contends the McCarran-Ferguson Act is inapplicable to any
Defendant not subject to regulation under the Iowa and Missouri insurance codes. For the
reasons set forth below, the Court rejects these arguments and finds that Plaintiff’s RICO claims
are preempted by the McCarran-Ferguson Act.
I.

Plaintiff’s RICO claims would intrude upon the states’ insurance regulation
schemes.

First, Plaintiff argues that these RICO claims would not require the Court to intrude upon
the states’ insurance regulation schemes because she is simply challenging Defendants’ “false
representation of compliance with SAP standards in calculating its surplus and risk-based capital,
thereby misrepresenting F&G’s financial condition and fraudulently inducing Plaintiff to acquire
5

Plaintiff does not argue that Maryland law applies, though F&G was domiciled in Maryland at the time of the
transactions in question. Plaintiff’s only reference to Maryland is on page four of her Brief in Opposition, where she
cites to Maryland regulations requiring that annual statements be prepared in accordance with the NAIC SAPs. Pl.’s
Br. 4 n.2 (Doc. 31); see Md. Code Regs. 31.04.04.01.A(3)(a).

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annuities that were…worth far less than what [Plaintiff] paid” (Doc. 31 at 2). Plaintiff disclaims
a challenge to the legitimacy of the underlying reinsurance transactions. Id. However, Plaintiff
spends a majority of the Complaint analyzing the propriety of these transactions. See, e.g., Doc.
1 at ¶¶ 135-44; 151-57; 161-67. Because the NAIC SAPs are so closely connected with these
states’ statutory and regulatory schemes for insurance, Plaintiff’s claims would require the Court
to analyze the underlying reinsurance transactions and subsequent regulatory approval of the
transactions.
The NAIC Statutory Accounting Principles, where implemented, are incorporated into
state regulations in a substantially similar manner and are then followed by state regulators in
approving the types of reinsurance transactions at issue here. See generally Iowa Admin. Code
1-55-1 to 191-17.5; Md. Code Regs. 31.05.07.01-31.05.07.05; Mo. Code Regs. Ann. tit. 20, §§
200-2.300; Nat’l Ass’n of Ins. Comm’rs, Statutory Accounting Principles (SAP) (Sept. 24, 2015),
http://www.naic.org/cipr_topics/topic_statutory_accounting_principles.htm

(“[T]he

[NAIC

Accounting Practices and Procedures] Manual does not preempt state legislative and regulatory
authority, therefore state variations may occur in accordance with prescribed or permitted
practices.”). The company’s domicile serves as primary regulator in approving reinsurance
transactions. See Iowa Code § 521A.5(1)(a) (requiring that the insurer’s “surplus as regards
policyholders…be reasonable in relation to the insurer’s outstanding liabilities and adequate to
its financial needs” in material transactions between an insurer and an affiliate); Md. Code Ann.,
Ins. §§ 7-702, 7-703 (outlining the standards for transactions within insurance holding company
systems and requiring commissioner approval of reinsurance transactions).

The financial

statement credit received for a reinsurance transaction is also controlled by the domiciliary
regulator.

See Iowa Code § 508.11.43 (requiring insurance companies to file an annual

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statement that includes “[a]ll other information as required by the national association of
insurance commissioners’ annual statement blank,” with all financial information reflected in the
annual report to be “kept and prepared in accordance with accounting practices and procedures
prescribed by the commissioner”); id. § 521B.102 (titled “Credit allowed certain domestic ceding
insurers”); Md. Code Ann., Ins. § 5-904 (describing the credit allowed for reinsurance
transactions); Md. Code Regs. § 31.05.08.03 (describing requirements for becoming an
accredited reinsurer); id. § 31.05.08.07 (describing effects of suspension or revocation of
accreditation of a reinsurer); cf. Mo. Rev. Stat. § 375.246 (addressing the allowance of
reinsurance as an asset or reduction from liability for a domestic ceding insurer); id. § 375.1028
(exempting foreign insurers filing audited financial reports in another state with substantially
similar requirements from most of Missouri’s financial reports requirements). In the event a
reinsurance transaction proves inadequate under the regulatory schemes, the state insurance
commissioner or director is authorized to take remedial action. See Iowa Code § 521E.2(5)
(allowing the commissioner to adjust inaccurate risk-based capital reports filed by domestic
insurers); id. § 521E.4-6 (requiring the commissioner to examine an insurer’s assets and
liabilities or take corrective action in the event the insurer’s total adjusted capital falls below
specific risk-based capital levels); Md. Code Ann., Ins. §§ 4-306 to 4-309 (authorizing the
commissioner to take specific remedial action based upon the risk-based capital level of an
insurer); Mo. Rev. Stat. § 375.938 (authorizing the director of insurance to examine and
investigate the affairs of any insurer to determine whether the insurer is engaged in any unfair or
deceptive act or practice prohibited by Missouri law).
Here, Plaintiff asks the Court to parse these reinsurance transactions and F&G’s
accounting of the transactions in the annual reports to determine if F&G misrepresented its

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financial condition under the NAIC Statutory Accounting Principles. In doing so, this Court
would be required to perform the same task as the insurance regulators in Iowa, Maryland, and
Missouri–specifically, to determine the propriety of the credit allowed for each reinsurance
transaction in F&G’s annual reports. Doing so would intrude upon the comprehensive regulatory
schemes put into place by the states. See Saunders, 537 F.3d at 968 (allowing courts to rewind
determinations made by state insurance directors would constitute a complete overlap with the
state agency’s delegated tasks).
II.

The presence of common law remedies, including punitive damages, does not
save Plaintiff’s RICO claim from reverse preemption.

Plaintiff next argues that the presence of common law claims of action and remedies in
Missouri and Iowa complement her federal claim and save it from reverse preemption6 under
McCarran-Ferguson. There is a divergence in views among the circuits regarding the application
of Humana where a private right of action is unavailable under a state’s insurance laws. Plaintiff
cites cases from the Third, Fourth, and Tenth Circuits in support of her argument. This Court
will follow Eighth Circuit precedent, which finds RICO claims reverse preempted where a
private right of action under the state insurance code is unavailable.
In Humana, plaintiffs argued that their insurance company privately negotiated with
healthcare companies for medical services discounts and failed to pass those discounts down to
the beneficiaries. Humana, 525 U.S. at 303-04. The Court found McCarran-Ferguson did not
bar plaintiffs’ claim because RICO’s private right of action and damages provision
complemented Nevada’s statutory and common law claims for relief. Id. at 313.

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Reverse preemption is “a form of inverse preemption that prevents a generally applicable federal law from
inadvertently invalidating, impairing, or superseding state laws enacted to regulate the business of insurance.”
Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 505, 511 n.1 (6th Cir. 2010); see also Humana,
525 U.S. at 306-07.

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Shortly thereafter, the Eighth Circuit in LaBarre recognized that Minnesota permitted
only administrative recourse for violations of Minnesota insurance law and, unlike RICO, did not
provide a private cause of action. LaBarre, 175 F.3d at 643. The Eighth Circuit concluded that
“the McCarran-Ferguson Act barred the application of RICO to an insurer which allegedly
violated [Minnesota insurance law] because ‘the extraordinary remedies of RICO would
frustrate, and perhaps even supplant, Minnesota’s carefully developed scheme of regulation.’”
Id.
Another case from this district analyzed the differences between the Humana and
LaBarre decisions and found the lack of a private cause of action for violations of the Minnesota
Unfair Claims Practices Act to be the only distinction between Minnesota and Nevada law.
Farthing v. United Healthcare of the Midwest, Inc., No. 98-CV-4262-GAF, 2000 U.S. Dist.
LEXIS 21994 (W.D. Mo. Feb. 29, 2000) (Fenner, J.). It held that Missouri law was similar to
Minnesota law in that: (1) there is no private cause of action for violations of insurance statutes
and regulations; (2) insurance companies are still subject to common law claims for fraud,
breach of contract, and breach of duty of good faith and fair dealing; and (3) Missouri law allows
for an award of punitive damages. Id. at *12.
The Court is not persuaded by Plaintiff’s argument that the Eighth Circuit’s decision in
Saunders effectively overruled its holding in LaBarre.

Plaintiff cites Saunders for the

proposition that the availability of a common law right of action preserves her RICO claim—a
reading that would effectively overrule the holding in LaBarre. Plaintiff emphasizes Saunders’
holding that because “neither the Missouri insurance laws nor Missouri common law provides a
private right of action for unfairly discriminatory rates,” transferring their administration from
the state agency to the federal court would obviously interfere with the administration of the state

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law. 537 F.3d at 968 (emphasis added). However, Saunders involved a right that was “solely a
creature of the insurance statutes,” and the lack of both statutory and common law rights of
action served only to reinforce the Court’s finding that the agency had primary authority in the
matter. Id. Hence, there is no indication the Eight Circuit in Saunders intended to overrule the
precedent set in LaBarre.7
Here, both Iowa and Missouri provide common law remedies,8 including punitive
damages,9 for fraudulent conduct. Insurance companies may still be subject to these common
law claims.10 In fact, both states include remedy preservation clauses in their unfair trade
practices acts. Iowa Code § 507B.8 (“No order of the commissioner under this chapter or order
of a court to enforce the same shall in any way relieve or absolve any person affected by such
order from any liability under any other laws of this state.”); Mo. Rev. Stat. § 375.944.4 (“No
order of the director under section 375.942 or order of a court to enforce the same shall in any
way relieve or absolve any person affected by such order from any liability under any other laws
of this state.”). Because the lack of a private right of action under the states’ insurance codes is
dispositive, the availability of common law remedies does not save Plaintiff’s RICO claim from
reverse preemption under Eighth Circuit precedent.
7

Panel decisions may only be overruled en banc. See Cottier v. City of Martin, 604 F.3d 553, 556 (8th Cir. 2010)
(en banc) (“When sitting en banc, the court has authority to overrule a prior panel opinion, whether in the same case
or in a different case.”); Liberty Mut. Ins. Co. v. Elgin Warehouse & Equip., 4 F.3d 567, 571 (8th Cir. 1993) (“In this
circuit only an en banc court may overrule a panel decision.”).

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See, e.g., Utica Mut. Ins. Co. v. Stockdale Agency, 892 F. Supp. 1179, 1192-93 (N.D. Iowa July 10, 1995) (listing
elements of fraudulent misrepresentation claim in Iowa); Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. 1988)
(en banc) (listing the elements of a Missouri common law claim for fraudulent misrepresentation).

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See, e.g., Spreitzer v. Hawkeye State Bank, 779 N.W.2d 726, 745 (Iowa 2009) (“Punitive damages may be awarded
in an action for fraud when, in conjunction with the fraud, the defendant acts with legal malice.”); Lewellen v.
Franklin, 441 S.W.3d 136, 145 (Mo. 2014) (en banc) (finding Missouri statutory punitive damages cap
unconstitutional as applied to claims to which the right to jury trial attaches at common law and affirming propriety
of punitive damages award for fraudulent misrepresentation claim).

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However, Plaintiff fails to cite a Missouri or Iowa case in which a common law claim for fraud was allowed to
proceed to challenge transactions approved by state insurance regulators.

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III.

The McCarran-Ferguson Act applies to Defendants’ activities and Missouri
and Iowa insurance codes address the fraudulent misrepresentations alleged
by Plaintiff.

Finally, Plaintiff argues the McCarran-Ferguson Act is inapplicable to Defendants not
subject to regulation under Iowa’s and Missouri’s insurance codes. Plaintiff contends that, apart
from F&G, Defendants make no showing that they are regulated by Iowa or Missouri insurance
regulators. This argument is unavailing.
Even if an insurance company is not subject to state insurance laws, the McCarranFerguson Act can apply to its activities governed by state insurance law. LaBarre, 175 F.3d at
643 (“As pleaded, CAC’s alleged activities are not governed by Minnesota’s insurance statutes
and do not involve the business of insurance within the framework of the McCarran-Ferguson
Act.” (emphasis added, internal citations omitted)).
Here, Defendants’ activities in furtherance of Plaintiff’s alleged scheme are regulated by
the state insurance codes.

Three of the challenged transactions are captive, or affiliate,

reinsurance transactions—the Raven Re transaction, the Raven Re stock transaction, and the
Front Street Re transaction. In both Maryland and Iowa, captive transactions must be reviewed
by the insurance commissioner of the ceding company’s state of domicile. See Iowa Code §
521A.5 (concerning standards for “[m]aterial transactions by registered insurers with their
affiliates”); Md. Code Ann., Ins. § 7-702 (enumerating standards for transactions within
insurance holding company systems); id. § 7-703(e) (stating the Commissioner shall take into
consideration compliance with § 7-702 and any potentially adverse effect on the interests of
policyholders in reviewing transactions, including affiliate transactions). Because Defendants’
activities, namely these challenged affiliate reinsurance transactions, are governed by the

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insurance codes of the ceding insurer’s state of domicile, the McCarran-Ferguson Act preempts
Plaintiff’s RICO claim against them.
Similarly, two challenged transactions between F&G and Wilton Re are governed by
state insurance law. Though Wilton Re is not a party to this suit, Plaintiff challenges Harbinger’s
participation in the alleged fraudulent scheme, which includes these unaffiliated reinsurance
transactions. The insurance codes of Iowa and Maryland outline requirements for entering into
unaffiliated reinsurance transactions.

See Iowa Code § 521.3 (“Any company proposing

to…enter into any reinsurance contract with another company shall file a plan and an application
in support of the plan with the commissioner. The plan shall set forth the terms of the proposed
contract…along with any other information requested by the commissioner.”); Md. Code Ann.,
Ins. § 5-904 (allowing an insurer to reinsure all or part of a particular risk and setting forth the
financial statement credits allowed for certain types of reinsurance transactions). Because these
challenged activities are governed by the insurance codes of the ceding insurer’s state of
domicile, the McCarran-Ferguson Act preempts Plaintiff’s claims.
Conclusion
Because the McCarran-Ferguson Act preempts Plaintiff’s RICO claims, the Court need
not address whether Plaintiff has plausibly pled these claims. Plaintiff’s complaint fails to state a
claim upon which relief can be granted and Defendants’ Motion to Dismiss (Doc. 23) is
GRANTED.
IT IS SO ORDERED.
Dated: February 12, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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