BAILEY v. CVS PHARMACY, INC.

Filing 28

MEMORANDUM and ORDER granting 11 Motion to Dismiss and denying 16 Motion to Strike as moot. ***CIVIL CASE TERMINATED. Signed by Judge Peter G. Sheridan on 8/14/2018. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

)

JACLYN BAILEY,

Civil Action No:
17-cv-1 1482 (PGS)(LHG)

Plaintiff
)

V.

)

CVS PHARMACY, INC.,

Defendant.

)

)
)

MEMORANDUM
AND
ORDER

)
)
)
)

This matter comes before the Court on Defendant CVS Pharmacy, Inc.’s (hereinafter,
“CVS”) Motion to Dismiss Plaintiff Jaclyn Bailey’s Complaint and Motion to Strike Plaintiff’s
Class Allegations. (ECF Nos. 11, 16).

In her Complaint, Plaintiff alleges CVS violated the

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et. seq., based on sending text
messages notifying recipients of the availability of flu shots. For the reasons set forth herein,
CVS’s motion to dismiss is granted, and motion to strike denied as moot.
BACKGROUND

At its core, this case about three words: “Flu shots available.” In this putative class action,
Plaintiff Jaclyn Bailey alleges that CVS has violated the TCPA, and brings this action on behalf
of herself and other CVS customers who, during the 20 14-15 flu season, received a text message
notifying them that their prescription was ready for pickup and, in the middle of the message,
included those three words.
By way of background, CVS operates retail pharmacies nationwide that provide various
healthcare services, including influenza vaccinations. (Complaint at ¶ 18). During the class period,
CVS established and maintained a text messaging program, “CVS Ready Text Program,” which

notified patients who enrolled in the program that their prescription was ready for pickup. (Id. at ¶
2). To sign up, customers simply provided their phone numbers to a CVS employee and their
information would be saved into the program; no formal paperwork was required. (Id. at

¶ 2-3).

The terms and conditions of the program were made available in stores and on CVS’s website. (Id.
at ¶J 58, 59). According to the Complaint, CVS posted a description of the Program, which stated:
What is CVS/pharmacy Text Messaging Program?
CVS/pharmacy Text
Messaging is a service for enrolled pharmacy customers to receive text alerts to
notify them that a prescription order is ready for pick up.
(Id. at

¶ 58).

The website also provided the following terms and conditions:

Enrollment in this service requires providing a mobile phone number and agreeing
to these terms and conditions. Before the service will start, you will need to verify
the mobile phone number by responding to a text message to your mobile phone
that affirms your choice to opt in to this service. Note that in affirming this
message, you acknowledge that notices about your prescriptions, which may
include some limited protected health information, will be sent to the number you
provide and whoever had access to that mobile phone or carrier account will be able
to see this information. Once you affirm your choice to opt in to this service,
Message Frequency will depend on account settings. You will receive a message
each time one of your prescriptions is ready for pick up. Message and data rates
apply. Customers will be allowed to opt out of this program at any time.
(Id. at

¶

59). It should be noted that CVS contends there is an older version of the Terms and

Conditions which ceased operation in November 2014. (Defendant’s Brief in Support at 6 n.3).
The terms are essentially the same, except that the Terms and Condition in November 2014 also
state: “to stop receiving text alerts, text STOP to CVSTXT (287898).” (ECF No. 11-2 at 4,
“November 2014 Terms and Conditions.”).
On November 24, 2014, Plaintiff visited a CVS pharmacy in Oakhurst, New Jersey, for
purposes of having a drug prescription filled. (Id. at

¶

82). While preparing her prescription, a

CVS employee asked Plaintiff for her phone number, so that she could receive text messages
notifying her when her prescription was ready for pickup. (Id. at ¶J 83-84). Plaintiff provided the

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employee with her number. (Id. at ¶ 85). This being said, Plaintiff avers that she “never gave any
consent

—

whether oral, written or through conduct

—

to receive any messages regarding flu shots

or the sale of flu shots, or for any other purpose other than the very limited purpose described by
CVS.” (Id. at

¶

86). In any event, upon providing the CVS employee her phone number, she

received the following text message, which purportedly gives rise to this action:
CVS/pharmacy: JACLYN, your order is ready at 246 NORWOOD AVE.. Flu shots
available. Questions? 732-502-3154 Reply HELP for Help
(Id. at

¶ 90;

Attachment A) (emphasis added). Plaintiff claims that she never received a flu shot

from CVS, nor did she express an interest in obtaining the same when she enrolled in the CVS
Ready Text Program. (Id. at

¶

97). Besides this one message, Plaintiff does not claim to have

received any other messages from CVS, which contain the “Flu shots available” language.
Plaintiff claims the message received above constitutes negligent and willful violations of
Section 227 of the TCPA and seeks to bring this action on behalf of herself and similarly situated
individuals. The proposed class is defined as:
All persons to whom CVS sent a text message between September 1, 2014 and
February 28, 2015, which contained the words “Flu shot available,” who had never
purchased or received a flu shot at CVS
(Id. at ¶ 103). She also seeks to bring on behalf of a sub-class, which she defines as:
All persons to whom CVS sent a text message between September 1, 2014 and
February 28, 2015, which contained the words “Flu shot available,” where CVS
obtained the customer’s cell phone number at the point of purchase while the
customer was ordering a prescription drug refill, and the customer had never
purchased or received a flu shot at CVS.
(Id. at 104).

3

LEGAL STANDARDS

I. Rule 12(b)(1) Subject Matter Jurisdiction
Under Federal Rules of Civil Procedure 12(b)(1) a claim can be dismissed for “lack of
jurisdiction over the subject matter.” This motion to dismiss may be asserted at any time in a case.
in re Kaiser Group

mt ‘1, Inc., 399 F.3d 558, 565 (3d Cir. 2005).

subject matter jurisdiction, “the standard.

.

.

In a motion to dismiss based on

is much more demanding [than the standard under

12(b)(6)].” ‘When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must
bear the burden of persuasion.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005)
(quoting Kehr Packages, Inc.

V.

Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

If the defendant’s attack is facial, the court may take all allegations in the complaint as true
and “may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able
to assert a colorable claim of subject matterjurisdiction.” Liu v. Gonzales, No. 07-1797, 2007 U.S.
Dist. LEXIS 74611, at *7 (D.N.J. Oct. 5, 2007). The standard of review differs substantially when
the challenge is factual. Then, there is no presumption of truthfulness to a plaintiff’s claims in the
complaint. RLR Invs., LLC v. Town ofKearny, No. 06-4257, 2007 U.S. Dist. LEXIS 44703, at *8
(D.N.J. June 20, 2007) (citations omitted).
Thus, consideration of the motion does not have to be limited; conflicting evidence may be
considered so that the court can decide factual issues that may bear on its jurisdiction. Id.
Furthermore, “[w]hen resolving a factual challenge, the court may consult materials outside the
pleadings, and the burden of proving jurisdiction rests with the plaintiff.” Med. Soc ‘y of N.J v.
Herr, 191 F. Supp. 2d 574, 578 (D.N.J. 2002) (citing Gould Elecs. Inc. v. US., 220 F.3d 169, 176
(3d Cir. 2000)). However, “[w]here an attack on jurisdiction implicates the merits of plaintiff’s

4

[fjederal cause of action, the district court’s role in judging the facts may be more limited.” RLR
Jnvs., LLC, 2007 U.S. Dist. LEXIS 44703, at *9 (internal citations omitted).
II. Rule 1 2(b)(6) Failure to State a Claim
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure I 2(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.” Ashcrofl v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ad. 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).
ANALYSIS

I. Lack of Standing
As an initial matter, CVS asserts that Plaintiffis Complaint should be dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) because Plaintiff has not established standing to
warrant federal court jurisdiction. Specifically, CVS claims that Plaintiff has failed to allege any
concrete injury, since she gave express consent to receive the text message. In response, Plaintiff
contends that CVS’s argument is directly in conflict with the Third Circuit’s recent decision in

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Susinno v. Work Out World, mc, 862 F.3d 346 (3d Cir. 2017), which recognizes that a cause of
action under the TCPA is essentially an intangible injury.
Here, the Court finds Defendant’s Rule 12(b)(l) arguments unpersuasive, since the present
cause of action arises under a federal statute. Moreover, the Third Circuit in Susinno, 862 F.3d at
351, expressly held that a concrete injury has been pled when the complaint asserts “the very harm
that Congress sought to prevent.” Jd. (internal quotation marks and citation omitted). Here, the
Complaint is predicated on receiving unsolicited text messages from an automatic telephone
dialing system that fell beyond the scope of Plaintiffs consent, which is “prototypical conduct
proscribed by the TCPA.” Id.; see also 47 U.S.C.

§

227 (b)(l)(C). As such, the Court will not

dismiss Plaintiffs claim based on lack of standing pursuant Federal Rule 12(b)(l); therefore, the
Court next considers whether Plaintiff states a claim upon which relief may be granted.
II. Failure to State a Claim
CVS next contends that dismissal is warranted since its “Flu shot available” message falls
within the “Healthcare Exemption” set forth under 47 C.F.R.

§

64.1200; as such, Plaintiff is not

entitled to relief. Plaintiff responds, contending that the “flu shots available” text message does
not fall within any exemption, since the message did not involve healthcare and she did not provide
express consent. The Court briefly discusses the legal framework of the TCPA, before addressing
the parties’ substantive arguments.
1. The TCP4 and Healthcare Exemptions
“Congress passed the TCPA to protect individual consumers from receiving intrusive and
unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013). “The TCPA
provides consumers with a private right of action for certain prohibited uses of automated

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telephone equipment.” Susinno, 862 F.3d at 348 (citing 47 U.S.C.

§

227(b)(3)). Notably, the

TCPA makes it unlawful for any person:
to make any call (other than a call made for emergency purposes or made with the
prior express consent of the called party) using any automatic telephone dialing
system or an artificial or prerecorded voice. to any telephone number assigned
to a paging service, cellular telephone service, specialized mobile radio service, or
other radio common carrier service, or any service for which the called party is
charged for the call.
.

47 U.S.C.

§

.

227(b)(l)(A)(iii) (emphasis added). This prohibition also applies to text messages.

See Gager, 727 F.3d at 269 n.2; see also Satterfield v. Simon & Schuster, Inc. 569 F.3d 946, 952
(9th Cir. 2009) (“a text message falls within the meaning of ‘to make any call’ in 47 U.S.C.

§

227(b)( 1 )(A)”).
However, the TCPA also recognizes several circumstances where prerecorded
communications or messages will not be in violation of the Act. First, calls made for “emergency
purposes” are not subject to the TCPA. See 47 U.S.C.

§ 227(b)(l)(A)(iii).

“The FCC has defined

‘emergency purposes’ to mean ‘calls made necessary in any situation affecting the health and
safety of consumers.” Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835, 843 (S.D.N.Y.
2017) (citing 47 C.F.R.

§

64.1200(0(4)). “Second, the FCC may exempt certain calls to cell

phones from the restrictions under the Act, provided that the calls ‘are not charged to the called
party.” Id. (citing 47 U.S.C.

§

227(b)(2)(C)). Finally, calls made “with prior express consent of

the called party” do not violate the TCPA. Id. (citing 47 U.S.C.

§ 227(b)(1)(A)(iii)).

Notably, under certain circumstances, the FCC exempts the written consent requirement
for health care messages, this has been referred to as the “Healthcare Exemption.” Under the
Healthcare Exemption, “[t]he FCC exempts from written consent calls to wireless cell numbers if
the call ‘delivers a “health care” message made by, or on behalf of, a “covered entity” or its
“business associate,” as those are defined in the HIPAA Privacy Rule.” Latner v. Mount Sinai
7

Health Sys., 879 F.3d 52, 54-55 (2d Cir. 2018) (citing 47 C.F.R.

§

64.1200(a)(3)(v)). “HIPAA

defines health care to include ‘care, services, or supplies related to the health of an individual.”
Id. (quoting 45 C.F.R.

§

160.103).

In 2015, the FCC created what has been called the “Exigent Healthcare Treatment
Exemption,” which is “a safe harbor from the consent requirement for certain ‘exigent’ calls to
wireless telephone numbers that have a ‘healthcare treatment purpose’ and ‘are not charged to the
called party.” Jackson v. Safeway, Inc., No. 15-4419, 2016 U.S. Dist. LEXIS 140763, at * 10 (N.D.
Cal. Oct. 11, 2016) (citing In the Matter ofRules & Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 30 FCC Rcd. 7961, 8030-3 1

¶J

143, 146 (July 10, 2015) (hereinafter, “2015

Order”)). “The FCC limited the exemption to many types of calls: [including].

.

.

“prescription

notifications, and home healthcare instructions.” Id. at *11 (citing 2015 Order 30 FCC Rcd. at
8030-31

¶

143, 146). Additionally, to be exempt from TCPA liability, the message must satisfy

the following requirements:
1) voice calls and text messages must be sent, if at all, only to the wireless telephone
number provided by the patient;
2) voice calls and text messages must state the name and contact information of the
healthcare provider (for voice calls, these disclosures would need to be made at the
beginning of the call);
3) voice calls and text messages are strictly limited to the purposes permitted in
para. 146 above; must not include any telemarketing, solicitation, or advertising;
may not include accounting, billing, debt-collection, or other financial content; and
must comply with HIPAA privacy rules;
4) voice calls and text messages must be concise, generally one minute or less in
length for voice calls and 160 characters or less in length for text messages;
5) a healthcare provider may initiate only one message (whether by voice call or
text message) per day, up to a maximum of three voice calls or text messages
combined per week from a specific healthcare provider;

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6) a healthcare provider must offer recipients within each message an easy means
to opt out of future such messages, voice calls that could be answered by a live
person must include an automated, interactive voice- and/or key press-activated
opt-out mechanism that enables the call recipient to make an opt-out request prior
to terminating the call, voice calls that could be answered by an answering machine
or voice mail service must include a toll-free number that the consumer can call to
opt out of future healthcare calls, text messages must inform recipients of the ability
to opt out by replying “STOP,” which will be the exclusive means by which
consumers may opt out of such messages; and,
7) a healthcare provider must honor the opt-out requests immediately.
Id. at *1112 (citing 2015 Order at 8032

¶

147).

2. The Healthcare Exemption
CVS contends that its “Flu shots available” text message constituted a “healthcare
message” under 47 C.F.R.

§ 64.1 200(a)(2) and, therefore, is exempt from liability under the TCPA.

Additionally, CVS argues that even if the text messages were considered telemarketing, it
nevertheless obtained Plaintiffs’ express consent to receive these text messages, thereby
eliminating TCPA liability.

“[Tjo qualify for the less demanding consent requirements of the

Health Care Rule, an automated call must ‘deliver a health care message made by, or on behalf of,
a covered entity or its business associate.” Zani, 246 F. Supp. 3d at 847 (citing 47 C.F.R.

§

64.1 200(a)(2)).
First, the Court must consider whether the text messages at issue were sent by an entity
covered by the Healthcare Exemption. See 47 C.F.R.

§

64.1200(a)(2). Here, the record clearly

demonstrates, and Plaintiff does not contest, that CVS falls within the covered entities under the
Healthcare Exemption. CVS, as a pharmacy, constitutes a healthcare provider. See Zani, 246 F.
Supp. 3d at 848; see also Jackson, 2016 U.S. Dist. LEXIS 140763, at *22..23. The Court next
considers whether the text messages conveyed a “health care message.”

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In order for the text message to constitute a health care message, the text message must
“deliver a health care message” as the term is defined under HIPAA regulations. Zani, 246 F. Supp.
3d at 849 (quoting 47 C.F.R.

§

64.1200(a)(2)). Under HIPPA, “health care” is defined as:

[C]are, services, or supplies related to the health of an individual. Health care
includes, but is not limited to, the following:
(1) Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative
care, and counseling, service, assessment, or procedure with respect to the physical
or mental condition, or functional status, of an individual or that affects the structure
or function of the body; and
(2) Sale or dispensing of a drug, device, equipment, or other item in accordance
with a prescription.
45 C.F.R.

§

160.103. Here, Plaintiff contends that the word “individual” illustrates HIPAA’s

intention that such healthcare messages be directed to particular individuals, not generic or massproduced messages.’
Several recent cases appear to control. The cases of Lamer, Zani and Jackson hold that a
generic flu shot reminder does not violate the TCPA, as they fall within the Healthcare Exemption.
See, Jackson, 2016 U.S. Dist. LEXIS 140763, at *26 (citing 45 C.F.R.

§

160.103); Zani, 246 F.

Supp. 3d at 851
In Zani, the Court identified three distinct factors that should be considered, in determining
whether the Healthcare Exemption applies: (1) “if such a call concerns a product or service that is
inarguably health-related”; (2) “if such a call is made by or on behalf of a health care provider to

Plaintiff also relies on the FCC’s decision in Kohil ‘s Pharmacy and Homecare, Inc., 31 FCC
Rcd. 13289, 13292-93 (Dec. 21, 2016), which held that faxes concerning the availability of flu
shots fell outside the healthcare exemption. However, as noted above, the Healthcare Exemption
extends to cell phone calls and text messages, not faxes; as such, Plaintiff’s reliance on Kohil’s is
misplaced. See Zani v. Rite Aid Headquarters Corp., No. 17-1230, 2018 U.S. App. LEXIS 4354,
at *8 (2d Cir. Feb. 21, 2018).
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a patient with whom she has an established health care treatment relationship”; and (3) “if the call
concerns the individual health care needs of the patient recipient.” Id.
Here, all three factors are present. First, a flu shot is health related. Second, the text
messages were limited only to CVS customers who enrolled or consented to the CVS Ready Text
Program. Finally, these messages were prepared in the course of notifying Plaintiff of the status
of her order. As such, the Court is satisfied that these messages meet the three prong Zani standard.
The Court also notes that the message at issue here is far less invasive or intrusive than the
messages involved in Zani and Jackson. In both of those cases, the plaintiffs received unsolicited
phone calls from pharmacies, which left approximately minute-long messages on the plaintiffs’
voicemails, to notify them that flu shots were now available. Here, Plaintiff received a three word
notice that was included within a message notifying her of the status of her prescription order,
which, as will be discussed next, Plaintiff consented to.
Finally, the Court considers whether Plaintiff provided express consent to receive the flu
messages from CVS. As noted above, under the Healthcare Exemption, an entity need only receive
express consent, not written, to escape TCPA liability. “On the issue of consent, the FCC has
clarified ‘that provision of a phone number to a healthcare provider constitutes prior express
consent for healthcare calls

.

.

.

if the covered entities and business associates are making calls

within the scope of the consent given, and absent instructions to the contrary.” Jackson, 2016 U.S.
Dist. LEXIS 140763, at *30 (citing 2015 Order, 30 FCC Rcd. at 8029

¶

141). The FCC has

explained that “within the scope of the consent given” means that calls or messages must be closely
related to the initial purpose for which consent was provided. Id.

However, courts that have

addressed this “scope of consent” issue have understood the “closely related” requirement to be

satisfied “so long as the call bears some relation to the reason for which the number was originally
provided.” Id. at *32..33 (collecting cases).
Here, it is undisputed that Plaintiff provided her phone number to CVS for purposes of
enrolling in the CVS Ready Text Program. However, Plaintiff contends that providing her phone
number did not constitute express consent and, even if it did, the “Flu shots available,” message
fell beyond the scope of consent.
To the contrary, “Persons who knowingly release their phone numbers have in effect given
their invitation or permission to be called at the number which they have given.” 2015 Order, 30
FCC Rcd. at 7990

¶ 49 (internal quotation marks omitted).

As such, courts have held that express

consent can be established where an individual provides an entity with his or her phone number,
for purposes of receiving calls thereafter. See Reardon v. Uber Techs, Inc., 115 F. Supp. 3d 1090,
1098 (N.D. Cal. 2015); Levy v. Receivables Performance Mgmt., LLC, 972 F. Supp. 2d 409, 418
(E.D.N.Y. 2013). Therefore, since Plaintiff provided her phone numbers for purposes of enrolling
in the CVS Ready Text Program, express consent had been granted.
Plaintiff’s argument that the text messages fall beyond the scope of consent is unavailing.
Plaintiff seeks to construe the scope of consent narrowly; however, courts that have addressed the
scope of consent issue have used a broad approach, one far broader than Plaintiffs narrow scope.
Generally, the “TCPA does not require that a call be made for the exact purpose for which the
number was provided, but it undoubtedly requires that the call bear some relation to the product
or service for which the number was provided.” Olney v. Job.Com, Inc., No. 12-1724, 2014 U.S.
Dist. LEXIS 60843, at *22 (E.D. Cal. May 1, 2014). Therefore, so long as the call or message
“closely relate[s] to the circumstances under which plaintiff provided his cell phone number,” it
will fall within the scope of consent. Aderholdv. car2go NA., LLC, No. 13-489, 2014 U.S. Dist.

12

LEXIS 26320, at *24 (W.D. Wash. Feb. 27, 2014). Here, the Court is satisfied that CVS’s “flu
shot available message” closely relates to the scope of Plaintiffs’ express consent, as it notified
Plaintiffs of the availability of prescription services.
A recent analogous case is Latner v. Mount Sinai Health Sys., 879 F.3d 52 (2018). In
Latner, the issue was whether a hospital’s flu shot text reminder violated the TCPA. Evidently, in
2003, the plaintiff had visited West Park Medical Group (“WPMG”) for a routine health exam and
signed a form that “granted consent to Mt. Sinai to use his information ‘for payment, treatment
and hospital operations purposes.” Id. at 53. In June 2011, Mt. Sinai hired a third party to send
mass messages on Mt. Sinai’s behalf, which included flu shot reminder text messages for WPMG.
Id. Three years later, September 2014, Plaintiff received the following message from WPMG:
Its flu season again. Your PCP at WPMG is thinking of you! Please call us at 212247-8100 to schedule an appointment for a flu shot. (212-247-8100, WPMG).
Id. at 54. In affirming the district court’s dismissal, the Second Circuit concluded that: (1) “the
text message delivered a health care message made by, or on behalf of, a covered entity or its
business associate”; and (2) by providing his phone number and signing various privacy notices,
he “provided his prior express consent to receiving a single text message about a ‘health-related
benefit[]’ that might have been of interest to him.” Id. at 55
In sum, the Court finds that: (1) CVS is a covered entity under the Healthcare Exemption;
(2) CVS’s “Flu shot available” message conveyed a “health care” message; and (3) CVS had
Plaintifrs prior express consent when it sent the message. Therefore, because the I-Iealthcare
Exemption applies, CVS’s motion to dismiss is granted.2 Since the Healthcare Exemption is
applicable, any amendment would be futile.

2

Because the Court finds the Healthcare Exemption applicable, we offer no opinion on the
applicability of the Exigent Healthcare Treatment Exception.
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ORDER

Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
IT IS on this 14th day of August, 2018,

ORDERED that Defendants’ Motion to Dismiss (ECF No. 11) is GRANTED; and it is
further
ORDERED that Defendant’s Motion to Strike Class Allegations (ECF No. 16) is
DENIED as moot; and it is further
ORDERED that the Clerk is directed to close the case.

PETER G. SHERIDAN, U.S.D.J.

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