Kazlauskas v. Verrochio et al

Filing 26

MEMORANDUM (Order to follow as separate docket entry)For the reasons set out above, Defendants Partial Motion for [sic] Dismiss Pursuant to F.R.C.P. 12(b)(6) (Doc. 22) is denied. An appropriate Order is filed simultaneously with this Memorandum. re 22 MOTION to Dismiss Signed by Honorable Richard P. Conaboy on 12/8/14. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL KAZLAUSKAS,

:
:CIVIL ACTION NO. 3:14-CV-1567
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
RONALD VERROCHIO, III, and
:
RONALD VERROCHIO, JR.,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider “Defendants’ Partial Motion for [sic] Dismiss
Pursuant to F.R.C.P. 12(b)(6)” (Doc. 22) seeking dismissal of
portions of Plaintiff’s Amended Complaint (Doc. 16) filed on
October 30, 2014.

Defendants filed their motion on November 11,

2014, and supporting brief (Doc. 23) on November 18, 2014.
Plaintiff filed his opposition brief (Doc. 24) on November 20,
2014.
25.)

Defendants filed a reply brief on November 26, 2014.

(Doc.

Therefore, this matter is fully briefed and ripe for

disposition.

For the reasons discussed below, we conclude

Defendants’ motion is properly denied.
I. Background
This action is based on a motor vehicle accident which took
place on August 11, 2012.

(Doc. 16 ¶ 5.)

Ronald Verrochio, III,

was operating a 2002 Dodge Durango owned by, and subject to the
control of, his father, Defendant Ronald Verrochio, Jr.

(Id.)

Plaintiff was a rear seat passenger when the vehicle went off the

road, collided with a tree, and traveled approximately another
thirty feet before colliding with a utility pole.
10.)

(Doc. 16 ¶¶ 6,

The vehicle traveled another twenty feet before coming to a

complete stop.

(Doc. 16 ¶ 10.)

As a result of the accident, Defendant Ronald Verrochio, III,
was charged with seven violations: 1) Aggravated Assault by Vehicle
While Driving Under the Influence, 75 Pa. C.S. § 3735.1; 2) Driving
Under the Influence of Alcohol or Controlled Substance, 75 Pa. C.S.
§ 3802(a)(1); 3) Driving Under the Influence of Alcohol or
Controlled Substance, Highest Rate of Alcohol, 75 Pa. C.S. §
3802(c); 4) Driving on Roadways Laned for Traffic, Driving Within
Single Lane, 75 Pa. C.S. § 3309; 5) Driving Vehicle at Safe Speed,
75 Pa. C.S. § 3361; 6) Careless Driving, 75 Pa. C.S. § 3714; and 7)
Reckless Driving, 75 Pa. C.S. § 3736.

(Doc. 16 ¶ 8.)

On March 7, 2013, Defendant Ronald Verrochio, III, pled guilty
to Aggravated Assault by Vehicle While Driving Under the Influence,
75 Pa. C.S. § 3735.1, and Driving Under the Influence of Alcohol or
Controlled Substance, Highest Rate of Alcohol, 75 Pa. C.S. §
3802(c).

(Doc. 16 ¶ 9.)

Other charges were non-prosed.

(Id.)

Plaintiff alleges injuries as a result of the accident,
including a fractured humerus, and back and shoulder pain. (Doc. 16
¶ 24.)

He asserts that some of his injuries “may be permanent into

the future.”

(Doc. 16 ¶ 23.)

Plaintiff also asserts that Defendant Ronald Verrochio, III,

2

has a long history involving both illegal drug and/or driving
offenses of which Defendant Ronald Verrochio, Jr., was aware.
(Doc. 16 ¶ 12.)

In 2003, Defendant Ronald Verrochio, III, was

charged with the following in Lee County, Florida: operating a
motor vehicle with a suspended license; possession of drug
paraphernalia; and contempt of court for failure to appear at a
hearing scheduled on possession and suspended license charges.
(Doc. 16 ¶ 13(1)-(3).)

In 2008, Defendant Ronald Verrochio, III,

was arrested and charged with three drug related charges: 35 P.S. §
780-113(16), knowing or intentionally possessing a controlled
substnace; 18 P.S. § 903, Criminal Conspiracy; and 35 P.S. § 780113, the use of, or possession with intent to use, drug
paraphernalia.

(Doc. 16 ¶ 13(4).)

of the offenses on January 9, 2009.

He pled guilty to some or all
(Id.)

Following the accident at issue here, Defendant Ronald
Verrochio, III, was charged with a speeding violation (November 7,
2012) and Disorderly Conduct (March 17, 2013).

(Doc. 16 ¶ 14.)

Plaintiff’s Amended Complaint contains three counts: Count I
against Defendant Ronald Verrochio, III, alleging “gross, reckless,
careless, negligent and indifferent conduct” (Doc. 16 ¶ 30); Count
II against Defendant Ronald Verrochio, Jr., for “Negligent
(Reckless) Entrustment” (id. at 9); and Count III against Defendant
Ronald Verrochio, Jr., for “Negligent (Reckless) Supervision” (id.
at 10).

3

Defendants seek to dismiss Counts II and III, thereby removing
Defendant Donald Verrochio, Jr., from the action.

(Doc. 22 at 9.)

In the alternative, Defendants request that paragraphs 33(e),
33(g), 36(e) and 36(g) of the Amended Complaint be dismissed on the
grounds they are conclusory and fail to state a claim, and
paragraphs 33(a) and 36(a) be dismissed in that they are
unsupported claims for punitive damages.
26.)

(Doc. 22 ¶¶ 19, 20, 25,

Defendants also request that the Court strike Plaintiff’s

allegation that Defendant Ronald Verrochio, Jr., is vicariously
liable for the actions of his son found in paragraph 18 of the
Amended Complaint.

(Doc. 22 at 9.)
II. Discussion

A. Motion to Dismiss Standard
In a motion to dismiss for failure to state a claim, the
defendant bears the burden of showing that no claim has been
presented.

Hedges v. United States, 404 F.3d 744, 750 (3d Cir.

2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir. 1991)).

Courts are directed to “accept all factual

allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled
to relief.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d

Cir. 2008).
When reviewing a complaint pursuant to a defendant’s motion to
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dismiss for failure to state a claim filed under Federal Rule of
Civil Procedure 12(b)(6), the court does so in the context of the
requirement of Federal Rule of Civil Procedure 8(a)(2) which
requires only “a short and plain statement of the claims showing
that the pleader is entitled to relief.”

The “short and plain

statement” must be sufficient to “give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other
grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007).
Twombly confirmed that more is required than “labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”

550 U.S. at 555 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a factual
allegation”)).

“Factual allegations must be enough to raise a

right to relief above the speculative level on the assumption that
all allegations in the complaint are true (even if doubtful in
fact).”

550 U.S. at 555 (citations omitted).

In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009),
the Third Circuit Court of Appeals set out the standard applicable
to a motion to dismiss in light of the United States Supreme
Court’s decisions in Twombly, 550 U.S. 433 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937(2009).
“[T]o survive a motion to dismiss, a
complaint must contain sufficient factual
5

matter, accepted as true to ‘state a claim
that relief is plausible on its face.’”
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 570). The Court emphasized that
“only a complaint that states a plausible
claim for relief survives a motion to
dismiss.” Id. at 1950.
McTernan, 577 F.3d at 530.

Iqbal explained that “[a] claim has

facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

556 U.S. at 678;

129 S. Ct. at 1949.
McTernan discussed the effects of Twombly and Iqbal in detail
and provided a road map for district courts presented with a motion
to dismiss for failure to state a claim in a case filed just a week
before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.
2009).
[D]istrict courts should conduct a two-part
analysis. First, the factual and legal
elements of a claim should be separated. The
District Court must accept all of the
complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal,
129 S. Ct.] at 1949. Second, a District
Court must then determine whether the facts
alleged in the complaint are sufficient to
show that the plaintiff has a “plausible
claim for relief.” Id. at 1950. In other
words, a complaint must do more than allege a
plaintiff’s entitlement to relief. A
complaint has to “show” such an entitlement
with its facts. See Philips [v. Co. of
Alleghany], 515 F.3d [224,] 234-35 [(3d
Cir.2008 )]. As the Supreme Court instructed
in Iqbal, “[w]here the well-pleaded facts do
not permit the court to infer more than the
mere possibility of misconduct, the complaint
6

has alleged--but it has not ‘show[n]’--‘that
the pleader is entitled to relief.’” Iqbal,
129 S. Ct. at 1949. This “plausibility”
determination will be “a context-specific
task that requires the reviewing court to
draw on its judicial experience and common
sense.” Id.
Fowler, 578 F.3d at 210-11.
Finally, the district court must extend the plaintiff an
opportunity to amend before dismissing a complaint unless amendment
would be inequitable or futile.

See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
B.

Defendants’ Motion

1.

Count II - Negligent Entrustment
Defendants contend that Plaintiff’s Negligent (Reckless)

Entrustment claim against Defendant Ronald Verrochio, Jr., must be
dismissed because the pleaded facts provide no reasonable basis for
Defendant Ronald Verrochio, Jr., to believe his son would drive the
vehicle in an alleged dangerous or unsafe manner on the night of
the incident.

(Doc. 23 at 6.)

Plaintiff maintains he has pled

sufficient facts to support the claim and Defendants’ motion should
be denied.

(Doc. 24 at 7-10.)

We conclude that Plaintiff’s

Amended Complaint contains minimally sufficient allegations to
survive Defendants’ motion.
Pursuant to Section 308 of the Restatement (Second) of Torts
[i]t is negligent to permit a third person to
use a thing or to engage in an activity which
is under the control of the actor, if the
actor knows or should have known that such
7

person intends or is likely to use the thing
or conduct himself in the activity in such a
manner as to create an unreasonable risk of
harm to others.
Restatement (Second) of Torts § 308.

Comment b of § 308 states in

relevant part that the rule applies
where the actor entrusts a thing to a third
person . . . if the actor knows that the
third person intends to misuse it, or if the
third person’s known character or the
peculiar circumstances of the case are such
as to give the actor good reason to believe
that the third person may misuse it.
Restatement (Second) of Torts § 308, comment b.
As set out in the Court’s previous Memorandum discussing this
issue,
decisions from Courts of Common Pleas in
Pennsylvania have applied comment b to
factual scenarios in which a plaintiff was
injured in a motor vehicle accident where the
driver was impaired, i.e, the plaintiff
claimed that another individual negligently
entrusted the vehicle to the driver because
that individual knew or should have known
that the driver would drive impaired.
Abramowitz v. Pipher, No. 2963 Civ. 2006, 82
Pa. D. & C.4th 212, 2006 WL 4722437 (Mon.
Cty. Pa. Com. Pl. Aug. 22, 2006); CarraCielski v. Scrimalli, No. 06 CV 2735 (Lacka
Cty. Pa. Com. Pl. filed Aug. 18, 2009).
Other courts have applied comment b in
similar situations. For example, in Waller
Truck Co., Inc. v. Morton, Civ. A. No. 132249-KHV, 2014 WL 5139723 (D. Kan. Oct. 10,
2014), the court applied comment b and
concluded summary judgment on the plaintiff’s
negligent entrustment claim was improper
because the plaintiff had presented
sufficient evidence for a reasonable jury to
find that the driver was not a competent
driver and the owner of the vehicle knew or
8

should have known of this fact.
(Doc. 14 at 9.)

Id. at *2-3.

After concluding that a negligent entrustment

claim under comment b of Restatement § 308 need not show
intoxication at the time of entrustment, the Court found that
Plaintiff had not pled sufficient facts in his Complaint to proceed
on such a theory but also concluded that we could not say amendment
would be futile.

(Doc. 14 at 12.)

Plaintiff’s Amended Complaint adds factual averments about
past conduct of Defendant Ronald Verrochio, III.

Plaintiff points

to the 2003 and 2008 arrests related to controlled substances and
driving with a suspended license, asserting that Defendant Ronald
Verrochio, Jr., was fully aware of his son’s past history and
behavior and allowed his son to use his vehicle when he knew or
should have known that he may become intoxicated or under the
influence of alcohol or illegal narcotics to a degree that would
render him incapable of safe driving.

(See, e.g., Doc. 16 ¶¶ 13,

15).
Defendants maintain that the allegations of prior drug
offenses contained in the Amended Complaint cannot be used to
charge Defendant Ronald Verrochio, Jr., with knowledge for purposes
of a negligent entrustment claim.

(Doc. 23 at 7.)

They add that

[t]his is especially true in the instant
matter as there is no nexus between the past
offenses, occurring several years prior to
the incident and the incident in question.
Plaintiff’s allegations are insufficient to
substantiate that Mr. Verrochio’s son engaged
9

in any type of repetitive course of conduct
involving drug use or that he had any
propensity to drive recklessly or while under
the influence of drugs or alcohol. . . .
. . . .
It is important to note that none of the
son’s prior violations involve negligent
driving or driving under the influence.
Thus, it necessarily follows that these old,
unrelated offenses are not sufficient to put
Ronald Verrochio, Jr. on notice that his son
had any alleged tendency or disposition to
drive carelessly and/or while under the
influence of an intoxicating substance.
(Doc. 23 at 7-8 (citations omitted).)
We agree that the prior violations of Ronald Verrochio, III,
which occurred in 2003 and 2008, are not sufficient in and of
themselves to give his father “good reason to believe” that his son
would misuse the vehicle in 2012.
Torts § 308, comment b.

See Restatement (Second) of

However, in determining whether dismissal

is appropriate, we must also look at reasonable inferences which
may be drawn from the allegations in the Amended Complaint and,
considered in the light most favorable to Plaintiff, decide whether
Plaintiff presents a plausible claim for relief–-a context specific
inquiry requiring us to draw on experience and common sense.
Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50 (citations
omitted).

Keeping in mind the federal notice pleading standard, we

conclude the conduct of Ronald Verrochio, III, before, during, and
after the accident at issue is sufficiently problematic to raise
the inference that Defendant Ronald Verrochio, III, may have
10

engaged in a repetitive course of conduct involving drug/alcohol
use and/or reckless driving and the further inference that, if such
conduct existed, his father (with whom he lived) would or should
have known about it.1

Thus, though very thin, Plaintiff has

presented enough to be allowed to proceed to discovery and explore
these issues.

In the absence of evidence of such a course of

conduct, Plaintiff’s claim for negligent entrustment would be
properly raised in a motion for summary judgment.2
2.

Count III - Negligent Supervision

1

Only conduct preceding the accident is relevant to notice.
However, from a common-sense perspective, accident-related conduct
and later arrests support an inference that Defendant Ronald
Verrochio, III, may have engaged in ongoing patterns of problematic
behavior.
2

Defendants point to factual distinctions between this case
and those which have considered negligent entrustment in the
context where a plaintiff claimed that another individual
negligently entrusted the vehicle to the driver because that
individual knew or should have known that the driver would drive
impaired. (Doc. 23 at 7-11 (citing Waller Truck Co., Inc. v.
Morton, Civ. A. No. 13-2249-KHV, 2014 WL 5139723 (D. Kan. Oct. 10,
2014); O’Loughlin v. Hunger, Civ. A. No. 07-1860, 2009 WL 1084198
(E.D. Pa. April 21, 2009); Magg v. Stoltzfus, Nos. 98-CV-4336, 99CV-3423, 2000 WL 1578498 (E.D. Pa. Oct. 17, 2000); Carra-Cielski v.
Scrimalli, No. 06 CV 2735 (Lackawanna Cty. Pa. Com. Pl. filed Aug.
18, 2009) Abramowitz v. Pipher, No. 2963 Civ. 2006, 82 Pa. D. &
C.4th 212, 2006 WL 4722437 (Monroe Cty. Pa. Com. Pl. Aug. 22,
2006)).) Importantly, all but Abramowitz were decided on summary
judgment. Further, the distinction Defendants cite between our
case and Abramowitz–-allegations of chronic use of pain medication
or other substances–-is not dispositive. Although the complaint in
Abramowitz specifically referred to a chronic problem, as discussed
in the text, here (giving Plaintiff’s Amended Complaint a very
liberal reading) the inference of problematic substance usage can
be derived from allegations regarding previous arrests and those
associated with the incident at issue.
11

Defendants argue that Plaintiff’s Negligent (Reckless)
Supervision claim must be dismissed because the Amended Complaint
contains no allegations that Defendant Ronald Verrochio, Jr.,
controlled or “took charge” of his adult son during the relevant
time period.

(Doc. 23 at 13.)

Though an even closer call than the

Negligent Entrustment claim, we conclude that Plaintiff’s Amended
Complaint contains minimally sufficient allegations to survive
Defendants’ motion.
As explained in Brisbine v. Outside In School of Experiential
Education, Inc., 799 A.2d 89, 93 (Pa. Super. 2002),
[g]enerally, there is no duty to control the
acts of a third party unless the “defendant
stands in a special relationship with either
the person whose conduct needs to be
controlled or in a relationship with the
intended victim of the conduct, which give
the intended victim a right to protection.”
[Brezenski v. World Truck Transfer, Inc., 755
A.2d 36, 40 (Pa. Super. 2000)] (citing
Emerich v. Philadelphia Ctr. for Human Dev.,
Inc., 554 Pa. 209, 720 A.2d 1032 (1998)).
See also Restatement (Second) of Torts § 315.
A special relationship is limited to the
relationships described in Sections 316-319
of the Restatement (Second) of Torts. See
Brezenski, 755 A.2d at 40-41.
799 A.2d at 93.

Section 319 addresses the duty of those in charge

of individuals with dangerous propensities to control those
individuals: “One who takes charge of a third person whom he knows
or should know to be likely to cause bodily harm to others if not
controlled is under a duty to exercise reasonable care to control
the third person to prevent him from doing such harm.”
12

Restatement

(Second) of Torts § 319.

Comment a to § 319 states the following:

The rule in this section applies in two
situations. The first situation is one in
which the actor has charge of one or more of
a class of persons to whom the tendency to
act injuriously is normal. The second
situation is one in which the actor has
charge of a third person who does not belong
to such a class but who has a peculiar
tendency so to act of which the actor from
personal experience or otherwise knows or
should know.
Restatement (Second) of Torts § 319, comment a.
Defendants’ argument that the Amended Complaint contains no
allegations that Defendant Ronald Verrochio, Jr., controlled or
took charge of his son during the relevant time period (Doc. 23 at
12-14) is countered with Plaintiff’s argument that Ronald
Verrochio, III, had dangerous propensities, lived with his father,
and drove his car regularly.

(Doc. 24 at 10-12.)

Although the Court concludes this claim is not well pled and
is, at best, extremely thin, we will allow it to go forward for
reasons similar to those stated regarding Plaintiff’s negligent
entrustment claim.
3.

Vicarious Liability
Defendants aver that paragraph 18 makes general allegations

that Ronald Verrochio, Jr., is vicariously liable for the actions
of his son without alleging facts that an employer-employee or a
master-servant relationship existed, citing Breslin by Breslin v.
Ridarelli, 454 A.2d 80, 82-83 (Pa. Super. 1982), for the

13

proposition that a defendant cannot be vicariously liable in the
absence of a master-servant relationship.

(Doc. 23 at 4-5.)

Plaintiff asserts that Defendants have waived this defense pursuant
to Federal Rule of Civil Procedure 12(g)(2).
Rule 12(g)(2) provides that, except in certain circumstances,
“a party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion.”
Paragraph 18 states the following:
Defendant Ronald Verrochio, Jr. is
vicariously liable for the actions of his
son, Defendant Ronald Verrochio, III and
acted with reckless indifference and/or was
negligent in the entrustment of said vehicle
to Defendant Ronald Verrochio, III and was
reckless and/or was negligent in his
supervision of Defendant, Ronald Verrochio,
III’s operation of the motor vehicle.
(Doc. 16 ¶ 18.)
To Plaintiff’s argument that the vicarious liability issue has
been waived, Defendants reply that “if the father is out of the
case, there is no vicarious liability.”

(Doc. 25 at 2.)

While we

agree in principle, the argument fails because Defendant Ronald
Verrochio, Jr., is not out of the case.
The Court concludes Plaintiff’s Amended Complaint does not
contain a count for vicarious liability.

Paragraph 18 contains

only a conclusory allegation regarding vicarious liability that is
of no legal significance.

Therefore, further discussion of this

14

issue is not warranted.
4.

Punitive Damages
Defendants alternatively argue that if Ronald Verrochio, Jr.,

is not dismissed from the aciton, Plaintiff’s claim for punitive
damages against him should be dismissed.

(Doc. 23 at 14.)

Because

we allow the negligent entrustment and negligent supervision claims
to go forward, any decision on the issue of the degree of
culpability of Defendant Ronald Verrochio, Jr., if any, would be
premature.
5.

Paragraph 33(e) and (g) and Paragraph 36(e) and (g)
Defendants assert that Paragraph 33(e) and (g) and Paragraph

36(e) and (g) of Plaintiff’s Amended Complaint should be dismissed
for failure to state a claim upon which relief can be granted.
(Doc. 23 at 16.)
Paragraphs 33(e) and 36(e) assert that the basis for liability
against Defendant Ronald Verrochio, Jr., may include “[a]llowing
Defendant Ronald Verrochio, III, to drive his vehicle in a gross,
wanton, careless, and negligent manner as may be determined through
the course of discovery.”

Defendants maintain that the allegations

that Ronald Verrochio, III, conducted himself in a manner which may
be determined through the course of discovery, is vague and does
not put defendant on notice of the claims against which he must
defend.

(Doc. 23 at 16.)

15

We agree that these allegations are vague and conclusory.
They are thus not considered factual support for the claims at
issue.

However, legal conclusions related to elements of a claim–-

though disregarded as factual support for the claim–-provide
context for the facts pleaded.

Averments which provide legal

framework for a claim are acceptable if supported by factual
allegations.

See Iqbal, 556 U.S. at 679.

In this case, the

allegations contained in paragraphs 33(e) and 36(e) standing alone
do not state a claim, but we do not find that they are intended to
do so in isolation.

Pre-discovery legal averments are often

necessarily vague and, as Defendants properly recognize, need only
be sufficient to put them on notice of the claims against them.
Here the federal notice pleading standard is minimally met for
Counts II and III–-Defendant Ronald Verrochio, Jr., must defend
against claims of negligent entrustment and negligent supervision
based on what he may have or should have known about his son’s preaccident conduct.
Paragraphs 33(g) and 36(g) assert that the basis for liability
against Defendant Ronald Verrochio, Jr., may include “[o]therwise
allowing Defendant Ronald Verrochio, III, to operate his vehicle in
violation of the statutes of the Commonwealth of Pennsylvania
and/or the ordinances of Wayne County.”

Defendants assert that the

statutes have not been specifically identified.

(Doc. 23 at 16.)

Plaintiff’s Amended Complaint identifies Pennsylvania

16

statutory provisions violated by Defendant Ronald Verrochio, III,
in the course of the accident at issue and incorporates this
information by reference into Counts II and III against Defendant
Ronald Verrochio, Jr.

(Doc. 16 ¶¶ 8, 31, 34.)

Therefore, the

Court concludes Defendants are on sufficient notice of the claims
against them contained in paragraphs 33(g) and 36(g).
III. Conclusion
For the reasons set out above, “Defendants’ Partial Motion for
[sic] Dismiss Pursuant to F.R.C.P. 12(b)(6)” (Doc. 22) is denied.
An appropriate Order is filed simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

17