City of Perry, Iowa v. Proctor & Gamble Company et al

Filing 114

OPINION AND ORDER re: 96 JOINT MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. filed by Professional Disposables International, Inc., Kimberly-Clark Corporation, Nice-Pak Products, Inc., Procter & Gam ble Company, Tufco Technologies, Inc., Rockline Industries: For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. In particular, all of Perry's claims against Defendants Tufco and PDI a re dismissed, as are Perry's declaratory judgment (Count One), breach of implied warranty of fitness for a particular purpose (Count Four), fraudulent misrepresentation (Count Five), nuisance (Count Seven), and negligence per se (Count Eight ) claims. By contrast, Perry's breach of express warranty (Count Two), breach of implied warranty of merchantability (Count Three), and negligent misrepresentation (Count Six) claims survive Defendants' motion. Perry does not request leave to amend its Complaint for a second time, and the Court declines to grant such leave sua sponte. Perry has already been granted one such opportunity. (See Docket Nos. 67, 78). "[L]eave may be denied where amendment would be futile," ; and that appears to be the case here. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 190 (2d Cir. 2015). As to the two dismissed Defendants, Perry has already canvassed the available flushable wipes in the vicinity and has found none implicating either Tufco or PDI. Perry's DJA, nuisance, and trespass claims fail as a matter of law. And as for the implied warranty of fitness for a particular purpose and fraudulent misrepresentation claims, there is no indi cation that Perry would be able to plead specific facts about interactions between Defendants and actual consumers that would cure the FAC's deficiencies; it was already unable to do so in its previous round of amendments. (See Defs.' Me m. Law Supp. Joint Mot. To Dismiss Pl.'s Compl. (Docket No. 65) 19-23 (making similar arguments to dismiss the warranty and misrepresentation claims on the previous motion to dismiss)). See, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 ( 2d Cir. 2008) (affirming the district court's denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). Finally, Perry was explicitly cautioned that it "w[ould] not b e given any further opportunity to amend the complaint to address issues raised by the motion to dismiss." (Docket No. 67). In light of the foregoing, Defendants shall file their answers with respect to Perry's remaining claims by June 9, 2016, and the parties shall appear for an initial pretrial conference with the Court on June 21, 2016, at 3:45 p.m. in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York 10007. In addition to th e matters referenced in the Notice of Initial Pretrial Conference (Docket No. 16), the parties should be prepared to address at that conference (1) whether the case should be transferred to the District of Iowa pursuant to Title 28, United St ates Code, Section 1404; (2) whether (and, if so, how) the case should be consolidated (or at least coordinated) with City of Wy., et al. v. Procter & Gamble Co., et al., No. 15-CV-2101 (JRT) (D. Minn.); and (3) whether the case should be stayed, pending proceedings before the FTC, for the reasons stated by Judge Weinstein in Belfiore. See 311 F.R.D. at 78-80. The parties should include brief summaries of their respective views on those issues in the joint letter that they are to submit by the Thursday prior to the initial pretrial conference, as directed in the Notice of Initial Pretrial Conference. The Clerk of Court is directed to terminate Docket No. 96. (Signed by Judge Jesse M. Furman on 5/19/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CITY OF PERRY, IOWA,
:
:
Plaintiff,
:
:
-v:
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PROCTER & GAMBLE COMPANY, et al.,
:
:
Defendants.
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:
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05/19/2016
15-CV-8051 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff, the city of Perry, Iowa (“Perry” or the “City”), brings this putative class action
against six leading manufacturers of so-called “flushable wipes”: Procter & Gamble Company
(“P&G”), Kimberly-Clark Corporation (“Kimberly-Clark”), Nice-Pak Products, Inc. (“NicePak”), Professional Disposables International, Inc. (“PDI”), Tufco Technologies Inc. (“Tufco”),
and Rockline Industries (“Rockline”). Perry alleges that, contrary to Defendants’
representations, the wipes are not actually “flushable” because they do not degrade after being
flushed down a toilet. Instead, the wipes remain intact, creating clogs in and causing other
damage to municipal sewer systems, wastewater treatment plants, and public buildings. Perry
contends that it has suffered damages as a result of the harm to its water systems and public
buildings, and asserts claims — on behalf of itself and a putative class of similarly situated
municipalities — against Defendants for declaratory relief and various state-law causes of action,
including breach of warranty, misrepresentation, and nuisance. Defendants now move to dismiss
the Complaint pursuant to Rules 8 and 12(b) of the Federal Rules of Civil Procedure. For the
following reasons, Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND
The following facts, taken from the Complaint, exhibits attached thereto, and statements
or documents incorporated into the complaint by reference, are assumed to be true for the
purposes of this motion. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013);
LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009); Kernan v. KurzHastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999).
Defendants each market and sell “flushable” personal hygiene products, primarily
“wipes.” (See First Am. Class Action Compl. (Docket No. 78) (“FAC”) ¶ 1). The Complaint
defines “flushable wipes” as “all wipe products designed, distributed, marketed, and advertised
by the Defendants as suitable or able to be flushed down a toilet without causing harm to
plumbing, sewer, and septic systems.” (Id. ¶ 2). 1 Defendants market the wipes, via product
labeling and advertisements, as “flushable,” able to “break up after flushing,” and “sewer and
septic safe.” (See id. ¶¶ 49-85). “Flushable” wipes are pre-moistened and, in order to maintain
that moisture without breaking down prior to use, they have been engineered to have so-called
“wet strength.” (Id. ¶¶ 24-25). Such “wet strength,” however, also means that the wipes do not
degrade easily (as, for example, toilet paper does), even when subjected to significant force. (Id.
¶¶ 26, 28-31). As a result, the wipes remain intact as they pass through home plumbing and
public sewer systems, causing clogs and other damage. (Id. ¶¶ 33-36). More specifically, Perry
contends that wipes have jammed its water system’s lift stations (id. ¶ 40), clogged and backed

1

According to the Complaint, the Association of Nonwoven Fabrics Industry (known as
the “INDA”), a “powerful trade association representing (and lobbying on behalf of) the nonwoven fabric industry, i.e., Defendants,” has standards for what products qualify as “flushable.”
Perry alleges that the INDA’s standards were developed “[w]ithout real input from the
wastewater industry,” are “industry friendly,” and “do not simulate conditions in real-life sewer
systems.” (FAC ¶¶ 27-28 (emphasis in original)).

2

up its sewer pipes (id. ¶ 41), and clogged pipes in municipal buildings (id. ¶ 42). Flushable
wipes have been identified as contributing at least in part to the clogs in each case. (See id.
¶¶ 39-42). Perry has been unable to identify the manufacturer of any given wipe, but it notes that
almost all of the “flushable” wipes available for sale in six large stores in Perry and the
surrounding area are manufactured by one of the Defendants. (Id. ¶¶ 43-44).
On October 13, 2015, Perry filed its Complaint in this Court, asserting eight claims for
relief under state and federal law. (Docket No. 1; see FAC ¶¶ 110-164). Perry seeks to represent
several classes of similarly situated plaintiffs: nationwide classes comprised of wastewater
operators, entities that own or operate sewage lines, and entities that own or operate buildings
that have experienced plumbing issues attributable to flushable wipes; and Iowa classes
representing the same. (See FAC ¶¶ 95-96). Notably, this case is far from the only pending legal
proceeding relating to whether “flushable” wipes are, in fact, “flushable.” Consumers have filed
at least fifteen putative class actions against one or more of the Defendants here (and, in some
instances, other parties). See Belfiore v. Procter & Gamble Co., 311 F.R.D. 29, 42-45 (E.D.N.Y.
2015) (listing cases). And there is at least one other putative class action, in the District of
Minnesota, brought on behalf of municipal plaintiffs, with claims much like those in this case.
See City of Wy., et al. v. Procter & Gamble Co., et al., No. 15-CV-2101 (JRT) (D. Minn.),
Docket No. 61 (First Am. Class Action Compl.). 2 In addition, the Federal Trade Commission
(“FTC”) is investigating the accuracy of the “flushable” label. See Belfiore, 311 F.R.D. at 45-47;
see also id. at 79-80 (referring “[t]he issue of an appropriate definition of ‘flushable’ wipes and
related issues” to the FTC and staying the case pending those proceedings). Among other things,

2

A motion to dismiss is pending in that court; oral argument was held on May 11, 2016.
See City of Wy., No. 15-CV-2101 (JRT) (D. Minn.), Docket Nos. 67, 102, 111.

3

the FTC filed a formal complaint against Defendant Nice-Pak, and later entered into a consent
agreement prohibiting Nice-Pak from marketing products as “flushable” unless they meet certain
requirements. Id. at 45-47. (See also Pl.’s Mem. Law Opp’n Defs.’ Mot. To Dismiss First Am.
Compl. (Docket No. 105) (“Pl.’s Opp’n”) 2 n.2). The FTC has also apparently conducted an
informal inquiry with respect P&G’s “flushable” products. See Belfiore, 311 F.R.D. at 47.
LEGAL STANDARDS
Defendants move to dismiss pursuant to Rules 8, 12(b)(1), and 12(b)(6) of the Federal
Rules of Civil Procedure. Rule 8(a) requires that a pleading include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see, e.g.,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (holding that a complaint “satisfies the
requirements of Rule 8(a) [when] it gives [the defendant] fair notice of the basis for [the
plaintiff’s] claims”). A Rule 12(b)(1) motion challenges the court’s subject-matter jurisdiction to
hear the case. See, e.g., Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is
properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.”). In reviewing a motion to
dismiss under Rule 12(b)(1), a court “must take all facts alleged in the complaint as true and
draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings inferences favorable to the party
asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal
quotation marks and citation omitted), aff’d, 561 U.S. 267 (2010). Moreover, a court “may
consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue,
but [a court] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S.
ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). “The plaintiff bears the

4

burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione
v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
By contrast, a Rule 12(b)(6) motion calls for the court to determine whether the facts
alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In evaluating a motion to dismiss pursuant to Rule
12(b)(6), a court must accept all facts set forth in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d
122, 124 (2d Cir. 2008) (per curiam). More specifically, the court must distinguish between
facts, on the one hand, and “mere conclusory statements” or legal conclusions on the other hand;
the latter are not entitled to the presumption of truth and must be disregarded. Ashcroft, 556 U.S.
at 678-79. The court must then “consider the factual allegations in [the] complaint to determine
if they plausibly suggest an entitlement to relief.” Id. at 681. A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2008)). A plaintiff must show “more than a sheer possibility that a defendant
acted unlawfully,” id., and cannot rely on mere “labels and conclusions” to support a claim,
Twombly, 550 U.S. at 555. If the plaintiff’s pleadings “have not nudged [his or her] claims
across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570.
DISCUSSION
Defendants move to dismiss Perry’s claims on various grounds. First, they contend that
all of the City’s claims should be dismissed for lack of subject-matter jurisdiction because it does
not have standing under Article III of the Constitution. Second, they argue that Perry’s pleading
violates Rule 8. Third, they assert that the City’s Declaratory Judgment Act claim is duplicative

5

of its other claims. And finally, they aver that each of Perry’s state-law claims fails as a matter
of law. The Court addresses the issues of standing (as it must, see, e.g., Ross v. Bank of Am.
N.A., 524 F.3d 217, 222 (2d Cir. 2008) (“Standing is the threshold question in every federal case,
determining the power of the court to entertain the suit.” (internal quotation marks omitted))) and
Rule 8 first, then turns to Defendants’ other arguments.
A. Article III Standing and Rule 8
Defendants’ argument that Plaintiff lacks Article III standing can largely be rejected. To
ensure that federal courts resolve only “those disputes in which the parties have a concrete
stake,” Article III requires a plaintiff seeking relief to show an “injury-in-fact, that is, the
invasion of a ‘legally protected interest’ in a manner that is ‘concrete and particularized’ . . . not
‘conjectural or hypothetical.’” Bhatia v. Piedrahita, 756 F.3d 211, 218 (2d Cir. 2014) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “Injury in fact,” however, “is a low
threshold,” which the Second Circuit has held “‘need not be capable of sustaining a valid cause
of action.’” Ross, 524 F.3d at 222 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d
Cir. 2006)). Here, although the question is a close one, Plaintiff crosses that “low threshold”
with respect to four of the six named Defendants. Perry alleges that it has incurred costs from
having to remove flushable wipes from its wastewater lift stations, sewer lines, and municipal
buildings. (FAC ¶¶ 7, 22, 39-42). Perry further alleges that flushable wipes manufactured by
Defendants Kimberly-Clark, P&G, Rockline, and Nice-Pak are available for sale in and around
the City and that those Defendants dominate the market for such products. (Id. ¶¶ 43-45, 86).
Taking those allegations as true, as the Court must, it is plausible that at least some of Perry’s
damages were caused by flushable wipes manufactured by those four Defendants. See Amidax
Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 148 (2d Cir. 2011) (noting that for a party “to

6

have standing to sue, its alleged injury in fact must be plausible” (emphasis added)) (citing Iqbal,
556 U.S. at 678). By contrast, the FAC includes no allegations about the availability or use in
Perry of any flushable wipes manufactured by Defendants PDI or Tufco. (See FAC ¶¶ 43-44,
79-80). Thus, the claims against those two Defendants must be and are DISMISSED. See, e.g.,
Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62-63 (2d Cir. 2012) (holding that a plaintiff prove
injury and standing separately with respect to each defendant). 3
Admittedly, the arguments for dismissal of Plaintiff’s claims against all Defendants are
not without some force. Defendants contend that Perry’s allegations contain only generic
complaints about flushable wipes, as opposed to evidence that the Defendants’ own products
caused any damage; that Perry fails to distinguish among the Defendants; and that other matter
could have caused the clogs of which the City complains. (See Defs.’ Mem. Law Supp. Joint
Mot. To Dismiss Pl.’s First Am. Class Action Compl. (Docket No. 97) (“Defs.’ Mem.”) 6-13;
Defs.’ Reply Supp. Joint Mot. To Dismiss Pl.’s First Am. Class Action Compl. (Docket No. 108)
(“Defs.’ Reply”) 1-3). 4 At the motion to dismiss stage, however, Perry’s allegations of concrete
injury to its water management systems (and its allegations that flushable wipes were at least
partially responsible for the clogs), combined with its allegations about the availability and sale
of Defendants’ products, suffices to show an injury that is fairly traceable to Defendants’

3

In light of that disposition, references to “Defendants” throughout the rest of this Opinion
and Order are to Defendants Kimberly-Clark, P&G, Rockline, and Nice-Pak.
4

Defendants also point out that a few of the products mentioned in the FAC are not
marketed as “flushable.” (See Defs.’ Mem. 3). That point implicates only P&G (and an
unnamed generic manufacturer), and Defendants concede that P&G produced other products
marketed as “flushable.” (See id. at 3 ; FAC ¶¶ 43-44). As for the products that come in both
flushable and non-flushable form (see Defs.’ Mem. 3 n.1), Perry may still have viable negligence
or breach-of-warranty claims against Defendants for products that were sold interchangeably
with flushable wipes and not sufficiently distinguished as non-flushable.

7

conduct. See Amidax, 671 F.3d at 145 (noting that the plaintiff “bears the burden of establishing
standing ‘in the same way as any other matter on which [it] bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the litigation.” (quoting
Lujan, 504 U.S. at 561)). Put simply, this is not a case where the plaintiff’s claims of injury are
wholly speculative; instead, Perry points to a concrete injury and a likely cause of that injury.
Cf. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013) (dismissing claims that rested on
the plaintiffs’ “highly speculative fear” about a series of actions that the government may or may
not decide to take); Amidax, 671 F.3d at 147 (rejecting a claim on standing grounds where the
plaintiff relied “on a single conclusory statement from an anonymous source” in a newspaper
article that was contradicted by other evidence in the record).
Furthermore, Defendants ignore the fact that Perry also seeks injunctive relief against
future injury. Defendants do not (and, at this stage, cannot) dispute that their products are sold in
and around Perry, so there is a significant risk that their products could end up in the City’s pipes
even if they have not already. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 155,
153 n.3 (2010) (finding that the plaintiffs had established sufficient injury-in-fact where they
alleged that they faced a “significant risk” of genetic contamination from deregulated crops).
Nor does the fact that other waste may be partially responsible for the clogs necessarily
immunize each Defendants from liability for the contribution to the harm that its own products
may have made. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 525 (2007) (“While it may be
true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no
means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or
reduce it.”); Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 558 (5th Cir. 1996) (“[T]he fairly
traceable element does not require that the plaintiffs show to a scientific certainty that the

8

defendant’s effluent, and the defendant’s effluent alone, caused the precise harm suffered by the
plaintiffs” (internal quotation marks omitted)). Instead, the combination of flushable wipes
found in Perry’s water system clogs and the widespread availability of Defendants’ flushable
wipes products in and around the City makes the link between Defendants’ conduct and
Plaintiff’s injury more than mere conjecture, crossing “the line from conceivable to plausible.”
Twombly, 550 U.S. at 570; see Clapper, 133 S. Ct. at 1154 (contrasting the “mere conjecture
about possible governmental actions” in that case with the “concrete evidence to substantiate
their fears” that had been presented by the farmers in Monsanto).
The Court’s conclusion that Plaintiff has standing to bring its claims against KimberlyClark, P&G, Rockline, and Nice-Pak is consistent with the conclusions of courts that have ruled
on motions to dismiss in other flushable wipes lawsuits around the country. One court did
dismiss on standing grounds (albeit giving the plaintiffs leave to amend) where the plaintiffs had
failed to identify which brand of wipes they had purchased and used. See Sweeney v. KimberlyClark Corp., No. 8:14-CV-3201-T-17EAJ, 2015 WL 5446797, at *3 (M.D. Fla. Sept. 15, 2015).
As a municipality, however, Perry plausibly alleges that it was harmed by any and all flushable
wipes purchased and used in the City. Other courts have dismissed claims for injunctive relief
on the ground that the plaintiffs did not allege that they would purchase wipes in the future. See
Machlan v. Procter & Gamble Co., 77 F. Supp. 3d 954, 960 (N.D. Cal. 2015); Davidson v.
Kimberly-Clark Corp., 76 F. Supp. 3d 964, 969 (N.D. Cal. 2014). But see Belfiore v. Procter &
Gamble Co., 94 F. Supp. 3d 440, 445 (E.D.N.Y. 2015) (finding that the plaintiff had standing to
pursue injunctive relief even though it was “unlikely” he would “re-purchase the product again”).
But when it comes to claims for damages, courts have found that plaintiffs’ allegations that they
bought flushable wipes and then experienced toilet clogs are sufficient to confer standing. See,

9

e.g., Sweeney v. Kimberly-Clark Corp., No. 8:14-CV-3201-T-17EAJ, 2016 WL 727173, at *2
(M.D. Fla. Feb. 22, 2016) (finding that the “evidence that the Plaintiffs had purchased and used
both Defendants’ wipes prior to experiencing plumbing difficulties, and that a three to four inch
ball of wipes was removed from their plumbing system . . . , while far from conclusive regarding
the issue of causation, gives rise to a reasonable inference that the Defendants’ wipes, either
individually or in the aggregate, were a cause of the Plaintiffs’ plumbing damage”); Machlan, 77
F. Supp. 3d at 964 (rejecting P&G’s argument that the plaintiff had failed to sufficiently allege
that its wipes caused his clog when the plaintiff’s complaint asserted that “[a]fter he unclogged
the toilet, he noticed that the toilet paper had partially decomposed, but the wipes were
completely intact”). The same is true here, at least at this early stage of litigation.
For similar reasons, Defendants’ related Rule 8 arguments also fail. Defendants
characterize Perry’s allegations in the FAC as “blanket and indiscriminate assertions” that run
afoul of Rule 8’s requirement that a plaintiff provide notice of its claims as to each of multiple
defendants. (Defs.’ Reply 3). The FAC, however, puts each remaining Defendant on notice as
to the claims against it, and contains factual allegations specific to each Defendant. See
Swierkiewicz, 534 U.S. at 514 (“[P]etitioner’s complaint easily satisfies the requirements of Rule
8(a) because it gives respondent fair notice of the basis for petitioner’s claims.”); Angermeir v.
Cohen, 14 F. Supp. 3d 134, 142-44 (S.D.N.Y. 2014) (collecting cases). The FAC lists the
specific products of each Defendant that are at issue (see FAC ¶¶ 43-44) and each Defendant’s
representations about the products to which Perry objects (see id. ¶¶ 49-78, 81-85). To the extent
that the FAC includes allegations about multiple Defendants at a time, “[n]othing in Rule 8
prohibits collectively referring to multiple defendants where the complaint alerts defendants that

10

identical claims are asserted against each defendant.” Hudak v. Berkley Grp., Inc., No. 13-CV89 (WWE), 2014 WL 354676, at *4 (D. Conn. Jan. 23, 2014).
B. Declaratory Judgment Act
Next, Defendants contend that Perry’s claim for relief under the Declaratory Judgment
Act (“DJA”), 28 U.S.C. § 2201, should be dismissed as duplicative. (See Defs.’ Mem. 15-16;
Defs.’ Reply 5-6). The Court agrees. A decision whether to award relief under the DJA lies
within the discretion of the district court; in making that determination, a district court should
consider: “(1) whether the judgment will serve a useful purpose in clarifying or settling the legal
issues involved; and (2) whether a judgment would finalize the controversy and offer relief from
uncertainty.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.
2005). The court may also weigh other factors, including “whether there is a better or more
effective remedy” than the DJA. Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 360 (2d Cir.
2003). Courts generally reject a DJA claim when other claims in the suit will resolve the same
issues. See, e.g., U.S. Bank Nat’l Ass’n ex rel. Lima Acquisition LP v. PHL Variable Ins. Co.,
No. 12-CV-6811 (CM) (JCF), 2014 WL 998358, at *9-10 (S.D.N.Y. Mar. 14, 2014); Amusement
Indus., Inc. v. Stern, 693 F. Supp. 2d 301, 311-12 (S.D.N.Y. 2010).
In this case, Perry “seeks a declaration that the Defendants’ flushable wipes are not in
fact flushable, do not degrade, and cause harm to sewer systems.” (FAC ¶ 114). But, if
successful, Perry’s other claims — for example, its breach-of-warranty claim, which calls for
determination of whether Defendants’ “affirmation[s] on the label that the wipes were
‘Flushable’ . . . ‘degradable’ and ‘sewer and septic system safe’” were false — would provide
that very relief. (FAC ¶¶ 117-18). Perry does not explain why its state-law claims “could be
resolved without resolving the declaratory relief claim,” nor why the possibility of class

11

certification warrants keeping the duplicative DJA claim. (Pl.’s Opp’n 16). Instead, the statelaw claims “will necessarily settle the issues for which the declaratory judgment is sought,”
meaning that the DJA claim “will serve no useful purpose” and will not “serve to offer relief
from uncertainty.” Amusement Indus., 693 F. Supp. 2d at 311-12 (internal quotation marks
omitted). The better remedy for the relief Perry seeks is adjudication of its state-law claims.
Accordingly, the Court exercises its discretion and dismisses Count One of the FAC as
duplicative.
C. Breach of Warranty
In the FAC, Perry asserts three breach-of-warranty claims: breach of express warranty
(Count Two; see FAC ¶¶ 115-22); breach of implied warranty of merchantability (Count Three;
see FAC ¶¶ 123-30); and breach of implied warranty of fitness for a particular purpose (Count
Four; see FAC ¶¶ 131-36). Although Defendants move to dismiss all three (Defs.’ Mem. 16-21),
Perry does not oppose their motion with respect to the breach of implied warranty of fitness for a
particular purpose, so that claim is dismissed as abandoned, see, e.g., Romeo & Juliette Laser
Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442 (TPG)(FM), 2014 WL 4723299, at *7
(S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage . . . , a plaintiff abandons a claim by
failing to address the defendant’s arguments in support of dismissing that claim.”), and the Court
focuses on the other two claims. 5 Under Iowa law (which the parties agree applies (see Defs.’

5

In any event, Defendants’ arguments for dismissal of Perry’s claim for breach of the
implied warranty of fitness for a particular purpose appear to be well founded. (See Defs.’ Mem.
20-21). Iowa courts have held that for a particular-purpose claim, plaintiffs may not rely on the
fact that the “ordinary use” of a product may be a specific one, but rather must allege knowledge
on the part of the seller of the buyer’s particular purpose. See, e.g., Sec. Nat’l Bank of Sioux City
v. Abbott Labs., No. 11-CV-4017 (DEO), 2012 WL 327863, at *18 (N.D. Iowa Feb. 1, 2012)
(“Plaintiff admits the goods were used for their ‘ordinary’ or customary purpose . . . and,
therefore, Plaintiff has no claim based in the implied warranty of fitness for a particular
purpose.”); Van Wyk v. Norden Labs., Inc., 345 N.W. 2d 81, 85-86 (Iowa 1984) (“We will not
12

Mem. 16-25; Pl.’s Opp’n 1, 16-25)), the elements of a claim for breach of an express warranty
are (1) the existence of an express warranty; (2) reliance on any such warranty; (3) breach of any
such warranty; and (4) damages proximately caused by the breach. See Nationwide Agribus. Ins.
Co. v. SMA Elevator Constr. Inc., 816 F. Supp. 2d 631, 677 (N.D. Iowa 2011); see also Iowa
Code § 554.2313 (defining express warranties). To establish breach of an implied warranty of
merchantability, on the other hand, a plaintiff must show that “‘(1) a merchant sold the goods,
(2) the goods were not merchantable at the time of sale, (3) injury or damage occurred to the
plaintiff’s property, (4) the defective nature of the goods caused the damage proximately and in
fact, and (5) notice was given to the seller of the damage.’” The Conveyor Co. v. Sunsource
Tech. Servs., Inc., 398 F. Supp. 2d 992, 1000 (N.D. Iowa 2005) (quoting Renze Hybrids, Inc. v.
Shell Oil Co., 418 N.W. 2d 634, 638 (Iowa 1988)); see Iowa Code § 554.2314. Significantly,
Section 554.2318 of the Iowa Code provides that “[a] seller’s warranty whether express or
implied extends to any person who may reasonably be expected to use, consume or be affected
by the goods and who is injured by the breach of the warranty.” Iowa Code § 554.2318; see also
id. § 554.1201(2)(aa) (defining “person” to include any “government, governmental subdivision,
agency, or instrumentality, public corporation, or any other legal or commercial entity”).
In light of the broad language of Section 554.2318, Defendants’ first argument — that
Perry may not sue for breach of warranty as a third-party beneficiary (see Defs.’ Mem. 16-18) —
is without merit. Courts have held that the statute means what it says and that injured third
parties may bring claims for breaches of warranties made to unrelated purchasers. See, e.g., Sec.

assume, as the plaintiffs suggest, that the seller had reason to know of the buyers’ particular
purpose, and their reliance on the skill and judgment of the seller, merely because [the product]
is only usable for one purpose.”). Here, Perry makes no allegations about the particular purpose
for which the buyers intended to use the products at issue, much less that Defendants knew about
such a purpose at the time of sale. (See FAC ¶¶ 131-36).

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Nat’l Bank, 2012 WL 327863, at *17 (holding that the parents of a child injured by baby formula
sold to hospital could bring breach of warranty claim against the manufacturer of the formula);
In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 379 F. Supp. 2d 348, 402
(S.D.N.Y. 2005) (applying Iowa law and denying a motion to dismiss a breach of warranty claim
on behalf of municipalities and other third-party beneficiary plaintiffs who were harmed by
defendants’ petroleum businesses); Kolarik v. Cory Int’l Co., 721 N.W.2d 159, 163 (Iowa 2006)
(holding that a remote buyer who chipped a tooth on an insufficiently pitted olive “falls within
[Section 554.2318’s] class of extended beneficiaries”). Given that case law and the allegations
in the FAC, Perry plainly qualifies as a “person who may reasonably be expected to . . . be
affected by the goods and who is injured by the breach of the warranty.” Iowa Code § 554.2318.
In arguing otherwise, Defendants mistakenly rely on an older, narrower version of the
third-party beneficiary statute, which was limited to household members and guests. (See Pl.’s
Opp’n 17-18; Defs.’ Mem. 16-17). Defendants also cite Cunningham v. Kartridg Pak Co., 332
N.W. 2d 881 (Iowa 1983), but that case is inapposite. (See Defs.’ Mem. 17). There, the Iowa
Supreme Court held that the shareholder of a company who had suffered economic loss as a
result of the company’s defective products was not within the class of injured third parties
contemplated by the statute because he suffered only economic losses divorced from the defect
of the products. See Cunningham, 332 N.W. 2d at 885. By contrast, Perry alleges that it
suffered property damage as a direct result of the alleged defects in Defendants’ products.
Finally, Defendants’ argument that Iowa law bars third parties from recovering consequential
economic loss is irrelevant. (See Defs.’ Mem. 17-18). That limitation applies only to economic
loss, not to claims of injury to person or property. See, e.g., Tomka v. Hoechst Celanese Corp.,
528 N.W.2d 103, 107 (Iowa 1995) (holding that a remote buyer could not recover “because he

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sustained only economic loss damages”); Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry
Mfg., Inc., 526 N.W. 2d 305, 309-310 (Iowa 1995) (discussing the difference between direct and
consequential economic loss damages and holding that only the former can be recovered by
nonprivity buyers); Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124,
129 (Iowa 1984) (“Section 554.2318 does not extend its warranty protection to third party
beneficiaries who have suffered only economic loss, because the term ‘injured’ has been
interpreted by this court to include only ‘physical harm to the plaintiff or his property.’” (quoting
Cunningham, 332 N.W. 2d at 885)). Here, of course, Perry seeks to recover for alleged property
damage, not for economic losses.
Defendants’ more specific arguments for dismissal of the express and implied warranty
claims are also unpersuasive. Defendants contend that the former claim must be dismissed
because the FAC lacks allegations about specific sales, representations, or reliance by particular
buyers. (See Defs.’ Mem. 18-19). The FAC adequately alleges, however, that Defendants’
flushable wipes are sold in stores in and around Perry (see FAC ¶¶ 39-45) and that Defendants
have made representations about their “flushable” nature and degradability. (See id. ¶¶ 49-78;
81-85). For example, the FAC alleges that P&G advertises its products on the label as
“flushable” (id. ¶¶ 50, 52); that Kimberly-Clark’s packaging says its “Flushable Cleansing
Cloths break up after flushing” (id. ¶ 59); that Nice-Pak sells wipes with the promise that they
are “safe for well-maintained sewer & septics” (id. ¶ 69); and that Rockline sells products that
are promised to “break[] apart after flushing” (id. ¶ 82). Such statements qualify as express
warranties, which are “affirmation[s] of fact, promise, or description related to the goods [made]
to the buyer of the goods.” Sec. Nat’l Bank, 2012 WL 327863, at *17 (citing Iowa Code §
554.2313). And drawing all inferences in favor of Perry, such allegations are sufficient to show

15

that consumers who purchased the wipes would have done so at least in part because of
Defendants’ statements about the flushability of the wipes. See id. (“Plaintiff alleges Defendant
made a variety of express warranties at the time of its transaction with the hospital and included
an express warranty on the container of the product; and, it is reasonable to infer that . . . the
hospital, a sophisticated organization, would not have accepted the [product] and given it to their
customers had they not also been so assured.”); see also Belfiore, 311 F.R.D. at 38, 41 (noting
that the plaintiff consumers in various class actions “allege that they paid a premium for
‘flushable’ wipes” in part because the wipes were advertised as “flushable”). Because Perry
goes on to allege that the wipes were not, in fact, flushable or degradable and that it was harmed
as a result, it states a claim for breach of express warranty under Iowa law.
Perry also states a claim for breach of the implied warranty of merchantability. The Iowa
Code defines merchantable goods, in part, as those that “are fit for the ordinary purposes for
which such goods are used” and “conform to the promises or affirmations of fact made on the
container or label if any.” Iowa Code § 554.2314; see also, e.g., The Conveyor Co., 398 F. Supp.
2d at 1000-1001 (discussing the interpretation of merchantability). Defendants argue that
Perry’s implied-warranty claim fails because the City has not alleged that any consumer
experienced harm from the wipes. (See Defs.’ Mem. 19-20). As noted above, however, Perry
may seek relief for its injuries as a third party, regardless of any harm to consumers. And Perry
plausibly alleges that the wipes were defective because they did not disintegrate when flushed,
contrary to representations made by Defendant and arguably contrary to the ordinary purpose for
which the goods are used. That satisfies Perry’s burden at this stage of the litigation. 6

6

Defendants additionally contend that Perry cannot bring its warranty claims without
alleging and proving consumer harm because a third-party “beneficiary can only enforce the
same rights that the consumer has under the warranty.” (Defs.’ Mem. 20 n.8). The case they cite
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D. Misrepresentation
Perry’s fifth and sixth claims are for fraudulent and negligent misrepresentation,
respectively. (FAC ¶¶ 137-51). Defendants move to dismiss both claims for failure to satisfy
the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure. (See
Defs.’ Mem. 21-23; Defs.’ Reply 8-10). There is no question that Rule 9(b), which provides that
a plaintiff “must state with particularity the circumstances constituting fraud or mistake,” applies
to Perry’s fraudulent representation claim. Fed. R. Civ. P. 9(b); see, e.g., Schuster v. Anderson,
378 F. Supp. 2d 1070, 1113 (N.D. Iowa 2005) (“[F]raudulent misrepresentation . . . claims must
be plead with the particularity required by Rule 9(b).” (collecting cases)). Rule 9(b) “requires a
plaintiff to adequately specify the statements it claims were false or misleading, give particulars
as to the respect in which the plaintiff contends the statements were fraudulent, state when and
where the statements were made, and identify those responsible for the statements.” In re Bank
of N.Y. Mellon Corp. Forex Transactions Litig., 991 F. Supp. 2d 479, 492 (S.D.N.Y. 2014)
(internal quotation marks omitted); see Rombach v. Chang, 355 F.3d 164, 174 (2d Cir. 2004)
(stating that plaintiffs “must do more than say that the statements . . . were false and misleading;
they must demonstrate with specificity why and how that is so”).
Perry’s fraudulent misrepresentation claim fails to meet that standard. In fact, the FAC
identifies no specific statements, no specific speakers, and no specific consumers who heard or
relied on those statements; instead, it lumps all Defendants together, accuses their products of

for that proposition, Audio Odyssey, Ltd. v. United States, 243 F. Supp. 2d 951 (S.D. Iowa 2003),
holds that where a signatory to the contract waives any claim under the contract, the third-party
beneficiary cannot bring its own claim by stepping into the shoes of the signatory. See Audio
Odyssey, 243 F. Supp. 2d at 969. There is no such allegation here. And the third-party
beneficiary statute imposes no requirement that the consumer also be injured by the breach of
warranty in order for an injured third party to sue; such an interpretation would undermine the
broad protections provided by the statute. See Iowa Code § 554.2318.

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being generally misleading, and states that “consumers” generally relied on and were deceived
by the misrepresentations. (See FAC ¶¶ 137-41). Although such allegations may have been
enough to create reasonable inferences under Rule 8 for Perry’s other claims, they are plainly
insufficient to satisfy Rule 9(b)’s heightened pleading requirements, and Count Five is
accordingly dismissed. See, e.g., Armstrong v. Am. Pallet Leasing Inc., 678 F. Supp. 2d 827, 877
(N.D. Iowa 2009) (dismissing a fraudulent representation claim where the plaintiffs failed to
identify “who made the representation and to whom it was made, or when”); Remmes v. Int’l
Flavors & Fragrances, Inc., 453 F. Supp. 2d 1058, 1077-78 (N.D. Iowa 2006) (dismissing a
claim of fraud for failure to plead justifiable reliance with particularity); Wright v. Brooke Grp.
Ltd., 114 F. Supp. 2d 797, 834 (N.D. Iowa 2000) (dismissing a fraudulent misrepresentation
claim where the plaintiffs did not distinguish between defendants, used vague allegations, and
did not specify a discrete time period for allegedly fraudulent statements).
By contrast, Perry’s negligent misrepresentation claim survives because it is not subject
to Rule 9(b). Under Iowa law, “misrepresentation based on negligent conduct has typically been
addressed within the framework of a claim for negligence when the conduct has caused personal
injury or property damage.” Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 123 (Iowa
2001) (citing Keeton, et al., Prosser and Keeton on the Law of Torts § 105, at 725-26, § 107, at
745 (5th ed. 1984)); see Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 110 (Iowa 2012)
(“When a negligent misrepresentation results in personal injury or property damage, the claim is
treated like any other negligence claim.”). Here, Perry alleges property damage as a result of
Defendants’ negligent conduct. (See FAC ¶¶ 144-50). Accordingly, Perry’s claim sounds in
negligence, not fraud, and Rule 9(b) does not apply. See McGraw v. Wachovia Secs., LLC, 2009
WL 2949290, at *7 (N.D. Iowa Sept. 10, 2009) (holding that Rule 9(b) does not apply to a

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negligent misrepresentation claim that sounds in negligence); cf. Eaves v. Designs for Fin., Inc.,
785 F. Supp. 2d 229, 254-55 (S.D.N.Y. 2011) (noting that courts typically apply Rule 9(b) to
negligent misrepresentation claims when they are based on the same set of facts as a fraud
claim); Brown v. N. Cent. F.S., Inc., 173 F.R.D. 658, 671-73 (N.D. Iowa 1997) (applying Rule
9(b) to fraud claims but not to negligent misrepresentation claims). Subject to the less rigorous
scrutiny of Rule 8, Perry’s negligent misrepresentation claim passes muster, as the FAC alleges
the elements of a negligence claim under Iowa law, namely “the existence of a duty to conform
to a standard of conduct to protect others; failure to conform to that standard; proximate cause;
and damages.” Gremmels v. Tandy Corp., 120 F.3d 103, 105 (8th Cir. 1997) (citing Hartig v.
Francois, 562 N.W.2d 427, 429 (Iowa 1997)); see Virden v. Betts & Beer Constr. Co., 656
N.W.2d 805, 807 (Iowa 2003) (“[T]he law imposes upon every person who undertakes the
performance of an act which, it is apparent, if not done carefully will be dangerous to other
persons or the property of other persons the duty to exercise his sense and intelligence to avoid
injury.” (internal quotation marks omitted)); see also Wieseler v. Sisters of Mercy Health Corp.,
540 N.W.2d 445, 449 (Iowa 1995) (“Negligence questions are typically for the jury and in only
exceptional situations may negligence cases be decided by the court as a matter of law.”). Thus,
Defendants’ motion is denied with respect to Count Six.
E. Nuisance and Trespass
Finally, Defendants move to dismiss Perry’s last two claims — for nuisance and trespass
(framed as a claim for negligence per se), respectively — on the grounds that Perry relies on an
impermissible theory of collective liability and cannot state a claim for nuisance once a product
has left the seller’s control. (See Defs.’ Mem. 23-25; Defs.’ Reply 10). The Court agrees that
Perry’s nuisance claim fails as a matter of law, albeit for a different reason: The parties do not

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cite, and the Court is not aware of, any cases applying Iowa law that recognize a nuisance claim
arising out of the sale or use of a product as opposed to the use of property. (See Pl.’s Opp’n 2425). Cf. Hawkeye Land Co. v. ITC Midwest LLC, 125 F. Supp. 3d 885, 892 (N.D. Iowa 2015)
(“Whether a lawful business is a nuisance depends on the reasonableness of conducting the
business in the manner, at the place, and under the circumstances in question.” (emphasis
added)); Miller v. Rohling, 720 N.W.2d 562, 567 (Iowa 2006) (“Under the Iowa Code and under
common law, the use of property or structures in such a manner as to unreasonably interfere
with another’s reasonable use and enjoyment of his property . . . is a nuisance.” (emphasis
added)); Page Cty. Appliance Ctr., Inc. v. Honeywell, Inc., 347 N.W.2d 171, 175 (Iowa 1984)
(“One’s use of property should not unreasonably interfere with or disturb a neighbor’s
comfortable and reasonable use and enjoyment of his or her estate.” (emphasis added)). Notably,
interpreting analogous North Dakota law in Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co.,
984 F.2d 915 (8th Cir. 1993), the Eighth Circuit drew that very distinction. See id. at 920. The
plaintiff, the Court stated, “has not presented us with any North Dakota cases extending the
application of the nuisance statute to situations where one party has sold to the other a product
that later is alleged to constitute a nuisance, nor has our research disclosed any such cases. North
Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a
landowner or other person in control of property conducting an activity on his land in such a
manner as to interfere with the property rights of a neighbor.” Id. Thus, the Court concludes
that, if confronted with the question, the Iowa Supreme Court would hold that a plaintiff may not
bring a nuisance claim based on the use of a product. See Brown Rudnick, LLP v. Surgical
Orthomedics, Inc., No. 13-CV-4348 (JMF), 2014 WL 3439620, at *13 (S.D.N.Y. July 15, 2014)
(noting that, where applicable state law is unsettled, a federal court’s “task is to predict how the

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state’s highest court would resolve the question” and may consider, among other things, “the
decisions of federal courts construing state law” (internal quotation marks omitted)). It follows
that Perry’s nuisance claim must be and is dismissed.
Perry’s final claim — for negligence per se — seeks to hold Defendants liable for a
negligent or reckless violation of Iowa Code, Chapter 716, which provides criminal penalties for
damage and trespass to property. (FAC ¶¶ 157-164). Perry provides no authority for the
proposition that a party can be held liable for criminal trespass by allowing an object to enter the
property of another (as opposed to entering property himself or herself) or for the proposition
that a negligent violation of a criminal statute can constitute negligence per se. (See Pl.’s Opp’n
23-25). In fact, the Iowa Attorney General determined, with respect to an earlier version of the
statute, that it would not be criminal trespass for a person’s dog, but not the person himself, to
enter upon another’s property. See Office of the Att’y Gen., State of Iowa, Op. No. 67-11-20,
1967 WL 167225 (Iowa A.G. Nov. 18, 1967). That reading is consistent with the current version
of the statute, which, in relevant part, defines trespass to require that the trespasser both “[b]e[]
upon or in property and wrongfully . . . plac[e] thereon or therein anything animate or
inanimate.” Iowa Code § 716.7(2)(a)(4) (emphasis added). Accordingly, Defendants’ motion to
dismiss Counts Seven and Eight is granted.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. In particular, all of Perry’s claims against Defendants Tufco and PDI are
dismissed, as are Perry’s declaratory judgment (Count One), breach of implied warranty of
fitness for a particular purpose (Count Four), fraudulent misrepresentation (Count Five),
nuisance (Count Seven), and negligence per se (Count Eight) claims. By contrast, Perry’s

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breach of express warranty (Count Two), breach of implied warranty of merchantability (Count
Three), and negligent misrepresentation (Count Six) claims survive Defendants’ motion.
Perry does not request leave to amend its Complaint for a second time, and the Court
declines to grant such leave sua sponte. Perry has already been granted one such opportunity.
(See Docket Nos. 67, 78). “[L]eave may be denied where amendment would be futile,” and that
appears to be the case here. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d
160, 190 (2d Cir. 2015). As to the two dismissed Defendants, Perry has already canvassed the
available flushable wipes in the vicinity and has found none implicating either Tufco or PDI.
Perry’s DJA, nuisance, and trespass claims fail as a matter of law. And as for the implied
warranty of fitness for a particular purpose and fraudulent misrepresentation claims, there is no
indication that Perry would be able to plead specific facts about interactions between Defendants
and actual consumers that would cure the FAC’s deficiencies; it was already unable to do so in
its previous round of amendments. (See Defs.’ Mem. Law Supp. Joint Mot. To Dismiss Pl.’s
Compl. (Docket No. 65) 19-23 (making similar arguments to dismiss the warranty and
misrepresentation claims on the previous motion to dismiss)). See, e.g., Ruotolo v. City of N.Y.,
514 F.3d 184, 191 (2d Cir. 2008) (affirming the district court’s denial of leave to amend in part
because of the previous opportunities that the plaintiff had received to amend the complaint).
Finally, Perry was explicitly cautioned that it “w[ould] not be given any further opportunity to
amend the complaint to address issues raised by the motion to dismiss.” (Docket No. 67).
In light of the foregoing, Defendants shall file their answers with respect to Perry’s
remaining claims by June 9, 2016, and the parties shall appear for an initial pretrial conference
with the Court on June 21, 2016, at 3:45 p.m. in Courtroom 1105 of the Thurgood Marshall
United States Courthouse, 40 Centre Street, New York, New York 10007. In addition to the

22

matters referenced in the Notice of Initial Pretrial Conference (Docket No. 16), the parties should
be prepared to address at that conference (1) whether the case should be transferred to the
District of Iowa pursuant to Title 28, United States Code, Section 1404; (2) whether (and, if so,
how) the case should be consolidated (or at least coordinated) with City of Wy., et al. v. Procter
& Gamble Co., et al., No. 15-CV-2101 (JRT) (D. Minn.); and (3) whether the case should be
stayed, pending proceedings before the FTC, for the reasons stated by Judge Weinstein in
Belfiore. See 311 F.R.D. at 78-80. The parties should include brief summaries of their
respective views on those issues in the joint letter that they are to submit by the Thursday prior to
the initial pretrial conference, as directed in the Notice of Initial Pretrial Conference.
The Clerk of Court is directed to terminate Docket No. 96.

SO ORDERED.
Date: May 19, 2016
New York, New York

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