RIZZO v. FIRST RELIANCE STANDARD LIFE INSURANCE COMPANY et al

Filing 11

MEMORANDUM and ORDER granting in part and denying in part 4 Motion to Dismiss. Defendant's motion to dismiss is GRANTED with regards to Counts I Vand VII. Defendant's motion to dismiss is DENIED with regard to Counts VI. Signed by Judge Peter G. Sheridan on 12/28/2017. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JODY RIZZO,

Civil Action No.: 17-cv-745 (PGS)
Plaintiff,
MEMORANDUM AND ORDER

v.
FIRST RELIANCE STANDARD LIFE
INSURANCE COMPANY, et al.
Defendants.

This matter is before the Court on Defendant First Reliance’s Motion to Dismiss Plaintiff

Jody Rizzo’s Complaint pursuant Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief may be granted. (ECF No. 4). In her Complaint, Plaintiff alleges that
First Reliance wrongfully denied her request for survivorship benefits under her deceased
husband’s insurance coverage policy.
BACKGROUND
On January 10, 2017 Plaintiff initiated this lawsuit against Defendants First Reliance
Standard Life Insurance Company (hereinafter, “First Reliance”) and Barnes and Noble, Inc. in
the Superior Court of New Jersey, Ocean County. On February 3, 2017 First Reliance removed
the matter to this Court based upon allegations concerning ERISA violations, and filed the present
motion to dismiss.
Plaintiff Jody Rizzo is a beneficiary of a life insurance policy issued to Angelo Rizzo, her
deceased husband (hereinafter, “Decedent”), and a long term disability (LTD) policy written by
First Reliance. Decedent was a manager of one of the Barnes & Noble stores and was a participant
in his employer’s welfare benefit plan, which included short and long term disability benefits, and
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Group Life benefits, all of which were insured by First Reliance. (Complaint [“Compl.”] at ¶ 8).
In October 2010. Decedent purchased additional life insurance through the First Reliance, worth
approximately $188,000. (Id. at ¶ 11).
From 2004 through 2012, Decedent suffered with cardiomyopathy, hypertension, edema,
tachycardia and congestive heart failure (Id. at ¶ 13). On November 12, 2012, Decedent received
medical treatment for various health conditions, such as, chest pain, shortness of breath,
palpitations, dizziness, tachardia and bilateral lower extremity edema. (Id. at ¶ 15).

His

cardiologist prescribed eleven medications. As a result, decedent could not work, and he received
short and long term disability benefits from Defendant First Reliance. (Id. at ¶ 17).
On March 1, 2013, Decedent received a letter from First Reliance, indicating that his short
term disability benefits would terminate on April 16, 2013, unless he provided an update from his
physician, Dr. Riss, as to his continued inability to work. (Id. at ¶ 19). At Decedent’s request, Dr.
Riss completed the “Physician’s Statement” wherein Dr. Riss declared that Decedent was “totally
disabled,” and it gave absolutely no indication that Decedent was capable of performing any type
of work, sedentary or otherwise. (Id. at ¶¶ 23-24). In the March 1, 2013 letter, First Reliance also
notified Decedent of his eligibility for a “waiver of premium” benefit under the Group Life
Insurance coverage. This benefit was available to “totally disabled” individuals and entitled him
to maintain life insurance coverage without paying premiums.
On March 20, 2013, Decedent applied for both total disability benefits and the waiver of
premium benefit, due to his total disability. (Id. at ¶ 25).

In late March 2013, Decedent

communicated with Maureen Murray, a First Reliance employee, who approved Decedent’s long
term disability benefits; but also requested further medical documentation in October or November
2013. (Id. at ¶¶ 26, 30).

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On October 9, 2013, First Reliance denied Decedent’s waiver of premium application
under the Group Life Insurance coverage. (Id. at ¶ 43). The basis for denial was First Reliance’s
conclusion that Decedent was not “totally disabled,” as defined in the Group Life Policy.
Basically, the letter stated that Decedent was not totally disabled because he could perform
sedentary occupations; as such, he was not entitled to the waiver of premiums benefit. Specifically,
the letter notes:
“[w]e have found that as of November 8, 2012 through November
1, 2013 you are capable of sedentary work exertion. Since you are
capable of sedentary work exertion, we referred your file to our
vocational department to review for viable occupations that would
be commensurate with your work history. Our vocational staff found
the following viable sedentary occupations that you would be
eligible for: Representative Supervisor; Personal Scheduler;
Customer-Complaint Clerk; Information Clerk.”
(ECF No. 4-2, “October 9th Letter,” at 1). The letter explained to Decedent that he could request
a review of this denial by submitting an appeal within 180 days of the receipt of the letter and
provided instructions on how to submit such a review. (Id. at 2).
The next day, October 10, 2013, Dr. Riss submitted another report to First Reliance
indicating Decedent’s disability. The Complaint states:
On October 10, 2013 Mr. Rizzo’s primary care physician, Dr. Riss,
completed the Defendant, First Reliance’s, “ATTENDING
PHYSICIAN’S STATEMENT SUPPLEMENTARY REPORT
FOR CONTINUATION OF LONG TERM DISA1LITY
BENEFITS”. The form specifically asks “How long was or will
patient be continuously totally disabled? (unable to work).” Dr.
Riss responded stating that Mr. Rizzo’s Coronary Artery Disease,
Diabetes, Hyperparathyroidism and Peripheral Vascular Disease
made him “continuously totally disabled and (unable to work) from
November 8, 2012 through the present which was then October 10,
2013.
(Compl. at ¶ 31). On November 26, 2013, Dr. Riss submitted another report, again concluding
that Decedent was totally disabled. (Id. at ¶ 32).
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On February 24, 2014, Decedent died. That same day, Plaintiff contacted Melissa Conroy,
a Barnes & Noble human resource representative, regarding survivor benefits. (Id. at ¶ 35). Conroy
explained to Plaintiff that human resources could not discuss the policy until it was established
that Plaintiff was a designated beneficiary under the policy. (Id.). On March 6, 2014, Plaintiff
spoke with Christine Wild, a First Reliance Manager of Life Claims, who advised Plaintiff that
she was being denied survivor benefits since Decedent did not qualify for the waiver of premium
benefit. (Id. at ¶ 36). Wild followed up this conversation by writing to Plaintiff, summarizing
their telephone call and enclosing the October 9th denial letter. (Id. at ¶ 42). According to Plaintiff,
this is the first time she had ever seen the letter. (Id.).
In March 2014, Plaintiff retained attorney Alton Neff, Esq. to represent her for her life
insurance benefits claim. (Id. at ¶ 60). However, after two years of inaction, Plaintiff fired Neff
and retained new counsel, who on behalf of Plaintiff, wrote a letter on July 25, 2016 to First
Reliance seeking to appeal the October 9, 2013 denial. (Id. at ¶¶ 60-62). First Reliance responded
on August 12, 2016, indicating that it refused to reconsider the denial and noted that the 180 days
of appeal period has lapsed. (Id. at ¶ 63).
Five months later, on January 10, 2017 Plaintiff initiated this lawsuit against First Reliance.
Plaintiff alleges several causes of action including violation of the consumer fraud act; breach of
implied covenant of good faith and fair dealing; bad faith denial of insurance benefits; breach of
contract; claim for life insurance benefits pursuant to N.J.S.A. § 17B:27-24 and N.J.A.C. § 11:442; claim for life insurance benefits under 29 USC 1132(a)(1)(B); and claim for life insurance
benefits under 29 U.S.C. § 1132(a)(3). Specifically, the Complaint alleges that the denial of the
application of waiver of premium due to total disability is in error and wrong for several reasons:

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1)

The conclusion was made without the support of any of Decedent’s physician’s

medical opinions (Id. at ¶ 52);
2)

First Reliance had no medical evidence of its own to justify its decision (Id. at ¶

3)

First Reliance continued to pay total disability benefits to Decedent until the date

53);

of his death (Id. at ¶¶ 55-57); and
4)

Decedent died within the 180 day period of appeal (139 days after the October 9th

letter); and Plaintiff’s conversation with Ms. Wild of First Reliance could be sufficient notice of
appeal to the denial of the application for waiver of premium payment.
LEGAL STANDARD
On a motion to dismiss for failure to state a claim pursuant to Federal Rule Civil Procedure
12(b)(6), the Court is required to accept as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and to view them in the light most favorable to the
non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.
1994). “To survive a motion to dismiss, 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)).
While a court will accept well-pleaded allegations as true for the purposes of the motion,
it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations. Iqbal, 556 U.S. at 678-79; see also Morse
v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). A complaint should be
dismissed only if the well-pleaded alleged facts, taken as true, fail to state a claim. See In re
Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can

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prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not
whether that person will ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d
Cir. 2001).
“The pleader is required to ‘set forth sufficient information to outline the elements of his
claim or to permit inferences to be drawn that these elements exist.’” Kost v. Kozakewicz, 1 F.3d
176, 183 (3d Cir. 1993) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 1357 (2d ed. 1990)). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.” Id.
ANALYSIS
I. Plaintiff’s State Law Claims
First Reliance seeks dismissal of Counts I through V of Plaintiff’s Complaint, which allege
claims under New Jersey law, since these claims are governed and preempted by ERISA.
Specifically, First Reliance argues that the insurance policy issued by defendant is governed by
ERISA because: (i) the intended benefits of the policy are life insurance benefits; (ii) the
beneficiaries are identified in the policy; (iii) the source of financing benefits is the policy; and
(iv) the procedures for receiving benefits are plainly stated in the policy. (Def.’s Br. at 5). Plaintiff
responds that her state law claims are not governed by ERISA or, alternatively, fall within ERISA’s
“safe harbor” provisions. The Court is unpersuaded by Plaintiff’s argument.

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ERISA governs any employee benefit plan that is “established or maintained . . . by any
employer engaged in commerce.” Shaver v. Siemens Corp., 670 F.3d 462, 475 (3d Cir. 2012)
(quoting 29 U.S.C. § 1003(a)). “ERISA defines an employee welfare benefit plan as ‘any plan,
fund, or program which was heretofore or is hereafter established or maintained by an employer
or by an employee organization, or by both, to the extent that such plan, fund, or program was
established or is maintained for the purpose of providing [certain benefits] for its participants or
their beneficiaries, through the purchase of insurance or otherwise.’” Menkes v. Prudential Ins.
Co. of Am., 762 F.3d 285, 290 (3d Cir. 2014) (citing 29 U.S.C. § 1002(1)). In determining whether
a plan falls within ERISA’s coverage, the Third Circuit has adopted the test set forth in Donovan
v. Dillingham, 668 F.2d 1367 (11th Cir. 1982). See Shaver, 670 F.3d at 475. “Under Donovan,
an ERISA plan ‘is established if from the surrounding circumstances a reasonable person can
ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for
receiving benefits.’” Id. (quoting Donovan, 668 F.2d at 1373). “The ‘crucial factor’ in determining
whether a ‘plan’ has been established is ‘whether the employer has expressed an intention to
provide benefits on a regular and long-term basis.’” Menkes, 762 F.3d at 290 (quoting Gruber v.
Hubbard Bert Karle Weber, Inc., 159 F.3d 780, 789 (3d Cir. 1998)). Here, the Court has little
trouble concluding, and Plaintiff appears to concede, that there exists an employee benefit plan,
under ERISA. It is undisputed that short and long term insurance benefits and basic life insurance
premiums were a part of Barnes & Noble’s compensation package. (Compl. at ¶¶ 8-9). Having
determined that the Barnes & Noble created a plan under ERISA, this Court next considers whether
Plaintiff’s state law claims are preempted.
“Section 1144(a) of ERISA defines the scope of ERISA preemption, providing ERISA
preempts all state laws that ‘relate to’ employee benefit plans.” Tarn v. Unilever United States,

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No. 12-5577, 2013 U.S. Dist. LEXIS 76220, at *10-11 (D.N.J. May 29, 2013) (quoting Dukes v.
U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir. 1995)). The Supreme Court has repeatedly made
it clear that ERISA preemption is broad and that a state law “relates” to an ERISA plan “if it has
a connection with or reference to such a plan.” Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001); see
also Levine v. United Healthcare Corp., 402 F.3d 156, 164 (3d Cir. 2005). A “state law relates to
an ERISA plan if among other things, the rights or restrictions” created by the state law “are
predicated on the existence of . . . an [ERISA] plan.” Ragan v. Tri-Cnty. Excavating, Inc., 62 F.3d
501, 510-11 (3d Cir. 1995). Here, Plaintiff’s Complaint includes claims for Consumer Fraud,
Breach of Implied Covenant of Good Faith and Fair Dealing, Bad Faith, Breach of Contract and
other state laws. Since all of these claims are predicated on Barnes & Noble’s employee plan, they
are preempted under ERISA. See id.; see also, Aetna Health Inc. v. Davila, 542 U.S. 200 (2004)
(state law bad faith claims are foreclosed by ERISA’s civil enforcement scheme). Moreover,
ERISA does not provide for treble, punitive or compensatory damages, which Plaintiff seeks. The
Third Circuit has consistently held that all damages beyond those permitted by ERISA’s exclusive
remedial scheme are preempted. See Pane v. RCA Corp., 868 F.2d 631, 635 n.2 (3d Cir. 1989)
(noting that ERISA does not authorize an award for punitive damages); Barber Union Life Ins. Co.
of Am., 383 F.3d 134, 141 (3d Cir. 2004) (noting that damages available under state law are
preempted by ERISA).
Finally, the Court is satisfied that Barnes & Noble’s plan does not fall within ERISA’s safe
harbor provision. As a general rule, “[a] plan that satisfies the Safe Harbor Provision's standards
will be deemed not to have been ‘established or maintained by the employer,’ and therefore will
not be governed by ERISA.” Schneider v. UNUM Life Ins. Co. of Am., 149 F. Supp. 2d 169, 176

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(E.D. Pa. 2001). Under the Safe Harbor provision, a plan will not be considered an “employee
welfare benefit pan” if:
(1) No contributions are made [to the plan] by an employer or employee
organization;
(2) Participation [in] the program is completely voluntary for employees or
members;
(3) The sole functions of the employer or employee organization with
respect to the program are, without endorsing the program, to permit the
insurer to publicize the program to employees or members, to collect
premiums through payroll deductions or dues checkoffs and to remit them
to the insurer; and
(4) The employer or employee organization receives no consideration in the
form of cash or otherwise in connection with the program, other than
reasonable compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deductions or dues checkoffs.
Id. (citing 29 C.F.R. § 2510.3-1(j)). Here, when reviewing the Barnes & Noble’s policy with First
Reliance, the Court is satisfied that the Safe Harbor provision does not apply. (ECF No. 4-3,
“Insurance Policy”). Under the terms of the Policy, employees were not required to contribute to
the cost of basic life insurance and the Policy encompassed all eligible employees. (Id. at 1.0-1.1).1
Plaintiff’s contention that since she seeks to recover “voluntary additional life insurance
coverage,” her claims fall within the safe harbor provision is of no moment. See Gross v. Sun Life
Assur. Co. of Can., 734 F.3d 1, 7-8 (1st Cir. 2013); see also Sgro v. Danone Waters of N. Am.,
Inc., 532 F.3d 940, 943 (9th Cir. 2008) (“So long as [the employer] pays for some benefits, ERISA

1

The Insurance Policy is an integral document to the complaint, and it was considered in
the disposition of this motion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997) (“As a general matter, a district court ruling on a motion to dismiss may not
consider matters extraneous to the pleadings. However, an exception to the general rule is that a
document integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss into one for summary judgment.” (internal quotation marks and
citations omitted)).
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applies to the whole plan, even if employees pay entirely for other benefits.”). Simply put, because
the record establishes that Barnes & Noble created a comprehensive package of insurance
coverage, the Safe Harbor provision does not apply.
In sum, since ERISA preempts Plaintiffs’ state law claims, Counts I through V are
dismissed.
II. Plaintiff’s ERISA Claims
First Reliance next seeks dismissal of Counts VI and VII of Plaintiff’s Complaint, wherein
Plaintiff alleges violations under ERISA. In Count VI, Plaintiff claims that under 29 U.S.C.
§1132(a)(1)(b), she is a beneficiary, and therefore, permitted to bring suit for benefits due under
the Plan. Alternatively, in Count VII, Plaintiff relies on 29 U.S.C. § 1132(a)(3) which allows a
beneficiary to: “(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.” Because
Plaintiff failed to exhaust the administrative remedies provided under the policy, First Reliance
contends Plaintiff’s ERISA claims must be dismissed.
ERISA claimants are required to exhaust administrative remedies prior to bringing suit to
enforce terms of the plan. D’Amico v. CBS Corp., 297 F.3d 287, 290-91 (3d Cir. 2002). The
requirement is “strictly enforced.” Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir.
1990). Since exhaustion of remedies is an affirmative defense, “the defendant bears the burden of
proving failure to exhaust.” Am. Chiropractic Ass’n v. Am. Specialty Health, Inc., 625 F. App’x
169, 173 (3d Cir. 2015) (citing Metro. Life Ins. Co. v. Price, 501 F.3d 271, 280 (3d Cir. 2007)).
Plaintiff argues that neither she nor her husband ever received the October 9, 2013 letter
denying the Rizzo’s application for waiver of life insurance premium due to total disability. The

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defendant asserts that the mailbox rule should apply. See Meiercherek v. Miller, 147 A.2d 406,
408 (Pa. 1959) (“The overwhelming weight of statistics clearly indicates that letters properly
mailed and deposited in the post office are received by the addressee”); Philadelphia Marine Trade
Ass ‘n-Int’l Longshoremen Assoc. Pension Fund Commissioner of the Internal Revenue Serv., 523
F.3d 140, 147 (3d Cir. 2008).

Generally, “[i]f a document is properly mailed, the court will

presume the United States Postal Service delivered the document to the addressee in the usual
time” Id. “A party relying on the presumption must present sufficient evidence to establish that
the letter was actually mailed. Id. Once the presumption is established, “the party alleging that it
did not receive the letter has the burden of establishing such, and merely asserting that the letter
was not received, without corroboration, is insufficient to overcome the presumption of receipt.”
Id.
Here, when reviewing the record in the light most favorable to Plaintiff, the Court is
satisfied for purposes of this motion to dismiss that Plaintiff exhausted administrative remedies.
While Plaintiff contests ever receiving the October 9th denial letter, there were subsequent
communications between First Reliance and Decedent’s doctor, which should have placed First
Reliance on notice that she was contesting the denial of the waiver of premium benefit. For
example, after the date of the denial letter, Dr. Riss forwarded two written reports (October 10,
2013 and November 26, 2013), which both conclude that Decedent was totally disabled.
Moreover, on March 6, 2014, still within the 180 appeal period, Plaintiff spoke with Ms. Wild, a
First Reliance Life Claims manager, questioning First Reliance’s denial of survivor benefits. This
too can reasonably be interpreted as oral notice of appeal First Reliance’s denial. Generally, the
purpose of the exhaustion requirement is to give First Reliance an opportunity to settle claims
before a suit is brought, see Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 249 (3d Cir.

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2002), while Plaintiff may not have submitted a specific formal notice of appeal, there is sufficient
evidence presented to conclude at least on a motion to dismiss that First Reliance was aware of
Plaintiff’s intent to contest the denial of the waiver of premium benefit. As such, the Court finds
the letters from Dr. Riss and the conversation with Ms. Wild of First Reliance gave sufficient
notice of the appeal.
Alternatively, First Reliance seeks dismissal of the breach of fiduciary claim in Count VII,
since “a claimant may not simultaneously pursue claims under Sections 1132(a)(1)(B) and (a)(3).”
(Def’s Br. at 9). In Varity Corp. v. Howe, 516 U.S. 489 (1996), the Supreme Court briefly
discussed a beneficiaries’ ability to seek relief under Section 1132(a)(3). The Court explained that
Section 1132(a)(3) was a “catchall” provision, “offering appropriate equitable relief for injuries
caused by violations that § 502 does not elsewhere adequately remedy.” Id. at 512. However, the
Court cautioned that, where “Congress elsewhere provided adequate relief for a beneficiary’s
injury,” relief under Section 1132(a)(3) would likely be unnecessary. Id. at 515. Courts have been
split in determining whether Varity precludes beneficiaries from simultaneously seeking relief
under Sections 1132(a)(3) and 1132(a)(1)(B). See Greene v. Hartford Life & Accident Ins. Co.,
No. 13-6033, 2014 U.S. Dist. LEXIS 126628, at *7-8 (E.D. Pa. Sept. 10, 2014) (identifying circuit
split). In Greene, the district court dismissed the plaintiff’s Section 1132(a)(3) claim where it
sought “precisely the same remedy” as his Section 1132(a)(1)(B). Id. at *9; see also Miller v.
Mellon Long Term Disability Plan, 721 F. Supp. 2d 415, 423-24 (W.D. Pa. 2010) (concluding that
since the plaintiff’s claim for relief under Section 1132(a)(3) was identical to her claim for relief
under Section 1132(a)(1)(B), there was no reason to invoke the catch-all provision.). The Court
reaches the same conclusion here, in Count VI of Plaintiff’s complaint, she seeks, among other
things, for First Reliance to convert the life insurance policy so that she can receive the life

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insurance proceeds pursuant Section 1132(a)(1)(B). (Compl. at ¶ 95). Likewise, under Count VII,
Plaintiff relies on Section 1132(a)(3) in seeking for First Reliance “to timely convert their life
insurance benefits.” (Id. at ¶ 97). Since this relief is already sought under Count VI, there is no
reason for Plaintiff to rely on Section 1132(a)(3); as such, Count VII is dismissed.
Finally, First Reliance seeks dismissal of Plaintiff’s ERISA’s claims as being time barred
by the contractual terms of the policy. Under the terms of the policy, “no legal action may be
brought against us to recover on this Policy . . . after three (3) years from the time written proof of
loss is received.” (Insurance Policy at 10.0). Here, First Reliance contends that the clock began to
run when the October 9th denial letter was sent. The Court disagrees. Plaintiff’s claim is for
survivorship benefits under the life insurance policy. Since First Reliance continued to pay total
disability benefits until the date of Decedent’s death, it is probable that the Rizzos believed the
waiver of premium was authorized. As such, since the first letter denying life insurance benefits
was on March 6, 2014, the Court concludes that the suit was timely filed.
III. Jury Demand
Defendant moves to strike the jury demand. Since ERISA does not permit a jury trial,
demand for a jury trial is stricken. McDonald v. Horizon Blue Cross, 2011 U.S. Dist. LEXIS 10893
*31-37 (December 23, 2011). Eichorn v. AT&T, 484 F. 3d 644, 656 (3d Cir. 2007).

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ORDER
It is on this 28th day of December, 2017;
Ordered that Defendant’s motion to dismiss is GRANTED with regards to Counts I – V
and VII; and it is further
Ordered that Defendant’s motion to dismiss is DENIED with regard to Counts VI;
and it is further
Ordered that the motion to strike the jury is denied.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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