CAREY-LAYLOR v. EQUIFAX INFORMATION SERVICES et al
OPINION. Signed by Judge Susan D. Wigenton on 5/6/2022. (ams, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 21-16953(SDW)(MAH)
EQUIFAX INFORMATION SERVICES,
LLC, et al.,
May 6, 2022
WIGENTON, District Judge.
Before this Court is Defendant Equifax Information Services’ (“Defendant”) Motion to
Dismiss Plaintiff Shonnette Carey-Laylor’s (“Plaintiff”) Complaint pursuant to Federal Rules of
Civil Procedure (“Rule”) 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and 15
U.S.C. § 1681p. Venue is proper under 28 U.S.C. § 1391(b). This opinion is issued without oral
argument pursuant to Rule 78. For the reasons stated herein, the Motion to Dismiss is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a “consumer” as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681, et
seq. (the “FCRA”). (D.E. 1 ¶ 3.) Per the FCRA, Defendants Equifax Information Services
(“Equifax”) and Trans Union, LLC (“Trans Union”) are “consumer reporting agenc[ies]”
(collectively “credit bureaus”) that report information about consumers’ creditworthiness to
prospective creditors (“credit reports”). (Id. ¶¶ 4, 5, 19.) Corporate creditor Defendant VW Credit,
Inc. (“VW Credit”) is, according to the FCRA, a “furnisher” of credit information. (Id. ¶ 6.)
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At some point prior to May 24, 2021, Plaintiff incurred an auto loan with VW Credit (“VW
loan”). (Id. ¶¶ 12, 20.) Plaintiff paid off and closed the account, which thereafter had a “$0
balance.” (Id. ¶ 13.) The credit bureaus thereafter “reported that the Pay Status of the account
was ‘30-59 Days Past Due.’” (Id. ¶ 13.) Sometime after closing the account, Defendant reported
the VW loan as closed with a $0 balance, but also reported the account as having a past due status.
(Id. ¶ 13.) On May 24, 2021, Plaintiff submitted a written dispute to the credit bureaus’ FCRA
compliance departments and alleged that the delinquent Pay Status was inaccurate because the
account was not currently delinquent; rather, the account had been paid and closed. (Id. ¶ 20.)
The credit bureaus notified VW Credit about Plaintiff’s dispute, but as of July 25, 2021, the credit
bureaus had not changed the Pay Status on the account. (Id. ¶¶ 21, 23.)
On September 14, 2021, Plaintiff filed suit in this Court against VW Credit, Equifax, and
Trans Union for violations of the FCRA, U.S.C. § 1681, et seq. 1 (D.E. 1–3.) In the Complaint,
Plaintiff contends that Defendant failed in its “obligations to conduct a reasonable investigation,
mark the account as disputed, and correct the misleading reporting.” (Id. ¶¶ 22, 23.) Plaintiff
further alleges that because her account has been paid and closed, it cannot also appear as
delinquent in the Pay Status field, and that by listing it as such, Defendant has failed to conduct a
reasonable investigation. (Id. ¶ 24.) Additionally, Plaintiff asserts that Defendant continues to
report “an active delinquency” for the VW loan, which has lowered her credit score and placed her
in a lower credit tier, that “creditors and prospective creditors [have been] misled as a result of
[the] lower credit score,” and that a prospective creditor denied Plaintiff credit due to the lower
On January 24, 2022, Plaintiff and VW Credit stipulated to dismissal with prejudice of Plaintiff’s claims against VW
Credit. (See D.E. 27.) On February 28, 2022, Plaintiff filed a Notice of Settlement with TransUnion in which Plaintiff
requested a stay while the parties finalize a settlement. (See D.E. 29.) Therefore, this Court addresses only Plaintiff’s
claims against Equifax (hereafter “Defendant”).
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credit score. (Id. ¶¶ 16, 17, 18, 19, 25, 26.) Furthermore, Plaintiff contends that she has “been
forced to deal with the aggravation and humiliation of a poor credit score.” (Id. ¶ 27.)
On November 1, 2021, Defendant moved under Rule 12(b)(6) to dismiss Plaintiff’s
complaint for failure to state a claim upon which relief may be granted, and the parties
subsequently completed timely briefing. 2 (See generally D.E. 16, 24.) Defendant argues that
Plaintiff has not shown an inaccuracy in the credit reporting, courts have rejected similar claims,
and “reporting a historical pay status on a closed account with a $0 balance is not inaccurate or
misleading.” (D.E. 16-1 at 7, 10–17.)
Plaintiff counters that under these particular circumstances, the interpretation of “Pay
Status” as reflecting a historical delinquency—as opposed to a current delinquency—is a factual
issue for a jury to decide, a jury may find that the term is misleading, and if taking the allegations
as true and giving Plaintiff the benefit of favorable inference, the “factual allegations plausibly
establish that [Defendant] reported inaccurate information.” (D.E. 24 at 7, 11–15.) Plaintiff
further argues that because she paid the balance to zero and did not default on the debt prior to
account closure, her claim is distinguishable from FCRA claims in which the plaintiffs’ accounts
were in default when the accounts were sold and transferred to other creditors. (Id. at 8, 15–18.)
Plaintiff also asserts that the “Reinvestigation Report” excerpt that Defendant attached to its brief
should not be considered by the Court because it does not represent the consumer report at issue,
and because it is being used solely as a defense to the allegations in the complaint. (Id. at 19–23.)
Plaintiff additionally contends that the Complaint adequately pleads actual damages and alleges
Defendant notes on the Notice of Motion and in the Introduction to its Memorandum of Law that it is pursuing
dismissal based on Rule 12(b)(6) or 12(c). (See D.E. 16 at 1, 16-1 at 6.) However, Defendant has neglected to set
forth the legal standard for—or any argument concerning—Rule 12(c). Accordingly, his Court decides this Motion
solely on the basis of Rule 12(b)(6) and declines to analyze the Motion under Rule 12(c).
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willful conduct by Defendant. (Id. at 23–25.) In the alternative, Plaintiff requests an opportunity
to amend the Complaint. (Id. at 25–29.)
An adequate complaint must be “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level . . . .” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (confirming that Rule 8 “requires a ‘showing,’
rather than a blanket assertion, of an entitlement to relief” (quoting Twombly, 550 U.S. at 555 n.3)).
In considering a Motion to Dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002)). However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombley, 550 U.S. at 555); see also Fowler v. UPMC Shadyside, 578 F.3d
203, 209–12 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations
in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). If the
“well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,”
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the complaint should be dismissed for failing to “show that the pleader is entitled to relief” as
required by Rule 8(a)(2). Id.
In examining Defendant’s motion, this Court considers only the Complaint as it was
presented by Plaintiff. The Court does not consider Exhibit A to Defendant’s brief, an excerpt of
a Reinvestigation Report that was not a part of the Complaint, which has not been verified as an
accurate representation of the consumer credit report Plaintiff references in the Complaint and is
not properly before this Court. “To decide a motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
While “a court may consider an undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are based on the document,” id., here,
Plaintiff disputes that her claims are based on the document provided by Defendant, and further
contends that it is not a consumer credit report and does not accurately reflect information germane
to Plaintiff’s Complaint. (See D.E. 24 at 19–23.) “[A] motion to dismiss is intended only to test
the sufficiency of the complaint’s allegations. Evidentiary battles are reserved for summary
judgment or for trial.” Hill v. Corinthian Condo. Ass’n, Inc., No. 20-2242, 2021 WL 1124782, at
*4 (E.D. Pa. March 24, 2021) (quoting Stine v. Pa. State Police, No. 1:09-CV-00944, 2011 WL
2066529, at *6 (M.D. Pa. Apr. 19, 2011), report and recommendation adopted, 2011 WL 2039574
(M.D. Pa. May 25, 2011)). Accordingly, this Court declines to consider Defendant’s Exhibit A in
rendering a decision on this Motion.
The analysis of the plausibility of Plaintiff’s claim requires a brief discussion of the FCRA.
“The . . . FCRA . . . was crafted to protect consumers from the transmission of inaccurate
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information about them, and to establish credit reporting practices that utilize accurate, relevant,
and current information in a confidential and responsible manner.” Cortez v. Trans Union, LLC,
617 F.3d 688, 706 (3d Cir. 2010) (quoting Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329,
1333 (9th Cir. 1995)). “Under [the] FCRA, [credit or consumer reporting agencies or ‘CRAs’]
collect consumer credit data from ‘furnishers,’ such as banks and other lenders, and organize that
material into individualized credit reports, which are used by commercial entities to assess a
particular consumer’s creditworthiness.” Seamans v. Temple Univ., 744 F.3d 853, 861 (3d Cir.
2014). As such, the FCRA “imposes a variety of obligations on both furnishers and CRAs.” Id.;
see also 15 U.S.C. § 1681s-2(b)(1)(A)-(D). In relevant part, the statute requires that a furnisher
notified of a dispute conduct an investigation and, “if the investigation finds that the information
is incomplete or inaccurate, report those results to all other consumer reporting agencies to which
the [furnisher] furnished the information . . . .” 15 U.S.C. § 1681s-2(b)(1)(D).
To state a claim under § 1681s-2(b), a pleading must demonstrate that “(1) [the plaintiff]
sent notice of disputed information to a consumer reporting agency, (2) the consumer reporting
agency then notified the defendant furnisher of the dispute, and (3) the furnisher failed to
investigate and modify the inaccurate information.” Cheadle v. Experian, Civ. No. 20-18183,
2021 WL 3144843, at *3 (D.N.J. July 26, 2021) (quoting Gittens v. Sterling Jewelers Inc., No. 155872, 2016 WL 828098, at *2 (D.N.J. Feb. 29, 2016)); see also SimmsParris v. Countrywide Fin.
Corp., 652 F.3d 355, 358 (3d Cir. 2011); Ruff v. America’s Serv. Co., No. 07-489, 2008 WL
1830182, at *4 (W.D. Pa. Apr. 23, 2008). Information is inaccurate under the statute if it is
factually incorrect or if it is “technically correct” but “through omission, . . . ‘create[s] a materially
misleading impression.’” Seamans, 744 F.3d at 865 (alteration in original) (quoting Saunders v.
Branch Banking & Trust Co. of Va., 526 F.3d 142, 148 (4th Cir. 2008)); cf. Bibbs v. Trans Union
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LLC, 521 F.Supp.3d 569, 574 (E.D. Pa. Feb. 23, 2021). “[I]n assessing the information in a
consumer’s credit report, a court must view the information ‘through the lens of a person in a
position to make an adverse decision based on a credit report, i.e., a creditor.’” Walker v. Trans
Union LLC, No. 20-5235, 2021 WL 5866876, at *4 (E.D. Pa. Dec. 10, 2021) (quoting Bibbs, 521
F. Supp. 3d at 574; Gibbs v. Trans Union LLC, No. 21-667, 2021 WL 4439546, at *2 (E.D. Pa.
Sept. 28, 2021); Smith v. Trans Union LLC, No. 20-4903, 2021 WL 1061213, at *2 (E.D. Pa. Mar.
Here, Plaintiff has adequately pleaded facts to establish the three elements required to state
a claim under § 1681s-2(b). Plaintiff’s Complaint alleges that, as required by the FCRA, she sent
notice of the disputed information to Defendant and Defendant then notified the creditor, but
Defendant failed to reasonably investigate because a reasonable investigation would find that the
Pay Status field inaccurately reflects the current status of the account, and that inaccurate reporting
damaged her credit and caused a creditor to deny her credit. (D.E. 1 ¶¶ 20, 21, 23–26.) Defendant
does not dispute that Plaintiff’s claim adequately pleads that Plaintiff complied with the notice of
dispute and Defendant complied with its notification requirements. (See generally D.E. 16-1.)
The crux of Defendant’s argument centers on whether Plaintiff’s Complaint adequately alleges
that the “Pay Status” field on a consumer credit report may mislead creditors into assuming
Plaintiff was or is delinquent on a car loan and may fail to reflect that Plaintiff fully paid the
account balance at closure. Id. This Court must consider whether Plaintiff has adequately pleaded
her contention that the derogatory reporting in the Pay Status field is misleading and may suggest
to creditors—and credit algorithms—that the account remains delinquent in perpetuity despite
Plaintiff’s full repayment of the account balance, and, furthermore, that Defendant’s failure to
ameliorate that misleading perception violates the FCRA. For Plaintiff’s claim to survive, this
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Court, accepting Plaintiff’s factual allegations as true and construing the Complaint in the light
most favorable to Plaintiff, must find that a reasonable reading of the Complaint reveals that
Plaintiff may be entitled to relief. See Phillips, 515 F.3d at 231.
While Defendant’s argument that several courts have rejected and dismissed similar claims
is generally pertinent, Plaintiff’s counterargument that the cases Defendant cited are factually
distinguishable from the matter at hand is meritorious. Various courts have construed similar
claims quite differently. In fact, in Egues v. Nelnet, this Court considered a somewhat similar
FCRA claim and arrived at a different result due to distinguishing facts. No. 21-802, 2021 WL
3486904 (D.N.J. Aug. 9, 2021). In Egues, the plaintiff’s delinquent student loan was transferred
to another company. Id. at *1. The plaintiff’s credit report reflected that the account was
transferred and closed, had a $0 balance as of the last verification date, and had a “Payment Status”
of 120 days late. Id. The plaintiff did “not allege that he paid off his debt prior to the Loan being
transferred, nor d[id] he dispute that he was delinquent in his payments prior to the transfer.” Id.
In the plaintiff’s Complaint, he argued that the payment status inaccurately reflected the account’s
current payment status and that the defendant had failed to conduct a reasonable investigation. Id.
The defendant moved to dismiss. Id. This Court granted the defendant’s motion after finding that,
when viewing the payment status in light of the credit report as a whole, the payment status did
not include the term “current,” and the information clearly reflected a historical record of the
account; thus, the information the defendant furnished was not inaccurate. Id. at *3 (“[W]hen read
as a whole, it is clear that the information Nelnet provided is historical and regards Plaintiff’s
accounts . . . when they were closed/transferred to another servicer.”).
The Court’s decision in Egues was in line with other similar dismissals involving credit
reporting on delinquent loan accounts that had been transferred to other creditors. See, e.g. Bibbs,
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521 F. Supp. 3d at 574–80 (finding a credit report was not misleading when it reflected that a
creditor transferred the plaintiff’s overdue student loan debt on the date reported, closed the
account, and reported it as 120 days past due); Smith, Kauffman, Bennet v. Trans Union LLC, No.
20-4233, No. 21-83, No. 21-421, 2021 WL 4818267 (E.D. Pa. Oct. 14, 2021) (collecting cases);
Patterson v. Sterling Jewelers Inc., No. 21-2138, 2021 WL 4592158 (E.D. Pa. Oct. 6, 2021).
Courts, however, have distinguished FCRA claims in which a plaintiff’s delinquent
account was closed and the remaining balance transferred to another lender from FCRA claims in
which a plaintiff paid off the balance of an account in full at closure. In Smith v. Trans Union,
LLC, the plaintiff was 60 days late on an auto loan with Wells Fargo Bank when he paid off the
loan balance “to the penny” and closed the account. No. 20-4903, 2021 WL 1061213, at *1, 3
(E.D. Pa. Mar. 19, 2021). After the account was closed, “Trans Union continued to report [the
p]laintiff’s Wells Fargo account as ‘Pay Status: Account 60 Days Past Due Date.’” Id. (internal
citation omitted). The plaintiff disputed the reporting of the account as late, the defendant
maintained that it was accurate, and the plaintiff filed an FCRA claim in which he alleged that the
defendant failed to conduct a reasonable investigation and put forth misleading information on the
credit report at issue. Id. The defendant moved for Judgment on the Pleadings and cited multiple
dismissed cases in which delinquent debt was transferred and the credit reports indicated similar
language as the report in question. Id. In its assessment, the Court considered whether the
information was inaccurate or misleading from a prospective creditor’s perspective and found that
cases in which a plaintiff fails to pay a debt, the debt is transferred to another lender, and the report
indicates a delinquent status in perpetuity are distinguishable from cases in which a plaintiff pays
the debt in full—even if the account had been delinquent prior to full payment. Id. at 2–3. The
Court reasoned that the pay status showing a late payment notation “would lead one to believe the
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account was past due and continued to be past due, or not fully paid, when the balance was zeroed
out when it was closed. This is clearly a black mark on the credit report of an individual seeking
credit.” Id. Further, the Court noted that “the phrase ‘60 Days Past Due’ could mislead a creditor
to believe the account was never paid off because that is what the plaintiffs’ credit reports said in
[the d]efendant’s cited cases, and indeed the account balances had never been paid in full.” Id.
The Court ultimately found that it could not determine as a matter of law whether the report is
accurate and not misleading or inaccurate and misleading, and that a jury must determine whether,
under the circumstances, the credit report’s information that is technically correct may still be
materially misleading. Id.
Some courts have declined to dismiss similar complaints based either on the rationale in
Smith or based on having adequate information to proceed, but inadequate information to
determine if the claim should be dismissed as a matter of law; other courts have rejected any such
nuance and dismissed similar claims. Compare Barrow v. Trans Union, LLC, No. 20-3628, 2021
WL 1424681, at *5–6 n.5 (E.D. Pa. April 13, 2021) (finding Judgment on the Pleadings
inappropriate when a plaintiff paid an account balance to zero, but the payment status continued
to reflect late payment, because “several different, plausible meanings . . . may be ascribed to these
remarks from the perspectives of a typical, reasonable reader and a typical, reasonable creditor,”
and “it is more prudent to allow the parties to adduce some evidentiary support for their respective
positions”), and Gatanas v. Am. Honda Fin. Corp., 2020 WL 7137854, at *1, *7 (D.N.J. Dec. 7,
2020) (denying Judgment on the Pleadings after determining that the Complaint had adequate
pleadings, but the Court did not have adequate information to deem a credit report accurate as a
matter of law when the plaintiff paid an auto loan account to zero and closed the account, but the
pay status reflected late payment), with Holland v. Trans Union LLC, No. 21-152, 2021 WL
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5804375, at *4–5 (E.D. Pa. Dec.7, 2021( (rejecting the rationale elucidated in Smith and finding
that a reasonable creditor would read a credit report as a whole and find that a plaintiff is not
delinquent—even when the plaintiff has paid the account to zero, thus pay status information
indicating the plaintiff is late is not misleading), and Ostrander v. Trans Union LLC, No. 20-5227,
2021 WL 3271168, at *6–9 (E.D. Pa. July 30, 2021) (granting Judgment on the Pleadings for a
claim similar to that in Smith, but distinguishing it because the credit report indicated the date the
delinquency occurred, thus as a whole the report could not mislead a creditor). Cf. Patterson, 2021
WL 4592158, at *3 (noting “that cases like Bibbs and the instant case, where the Plaintiff does not
allege that he paid off the debt before the account was zeroed out, are distinguishable” from cases
like Smith where a plaintiff paid off the balance when the account was closed); Salvador v. Fedloan
Servicing, No. 20-20568, 2021 WL 5422292, at *5 (D.N.J. Oct. 28, 2021) (distinguishing cases in
which “the parties did not attach the operative reporting for the courts to review when evaluating
the motions to dismiss,” and noting that absent such evidence, courts should construe the
allegations in the plaintiffs’ favor).
Here, Plaintiff’s claim, factually, is akin to those in Smith, Gatanas, and Barrow. Plaintiff
alleges, and Defendant does not dispute, that the account was paid to the penny and was not
transferred while in delinquency. In Egues, the plaintiff did “not allege that he paid off his debt
prior to the Loan being transferred, nor d[id] he dispute that he was delinquent in his payments
prior to the transfer.” WL 3486904, at *1. That distinction may or may not make a difference
when considering whether a reasonable creditor would misconstrue Plaintiff’s credit worthiness
because—depending on how the account appears on the report as a whole—a reasonable creditor
may or may not discern that the account was paid in full by the borrower. This Court cannot
determine at this early stage that a reasonable creditor would or would not discern that important
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information; that determination may become apparent with the review of additional evidence, or
it may not, which could make it a factual issue for a jury.
Moreover, in Egues, the plaintiff submitted evidence of the credit reporting with the
Complaint. WL 3486904, at *1–3. This Court considered the credit report as a whole and found
that a reasonable creditor would understand that the plaintiff had a delinquent debt that was
transferred to another lender, and that the account in question had a zero balance but was
historically delinquent. Id. This Court specifically noted that it was “clear that the information
Nelnet provided is historical and regards Plaintiff’s accounts . . . when they were closed/transferred
to another servicer.” Id. at *3.
Unlike the Complaint in Egues, here, the Complaint did not include evidence of the credit
reporting. As noted in Salvador, “absent such evidence, courts should construe the allegations in
the plaintiffs’ favor.” 2021 WL 5422292, at *5. This Court cannot definitively say whether
Plaintiff’s claim is accurate or inaccurate based on the whole report if it does not have the report,
nor can it dismiss Plaintiff’s plausible claims as inaccurate. Rule 12(b)(6) requires that this Court
consider the factual allegations in a light most favorable to Plaintiff and construe the factual
allegations as true. The Court must also determine whether “under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 231 (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). With those requirements at the
forefront, this Court finds that the facts as pleaded by Plaintiff may reasonably support relief and,
as the Court stated in Barrow, “it is more prudent to allow the parties to adduce some evidentiary
support for their respective positions.” No. 20-3628, at *5 n.5. Therefore, dismissal is not
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For the reasons set forth above, Defendant’s Motion to Dismiss is DENIED.
appropriate order follows.
___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.
Michael A. Hammer, U.S.M.J.
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