Harmer et al v. Colom et al

Filing 76

MEMORANDUM OPINION OF THE COURT signed by Chief Judge Kevin H. Sharp on 12/24/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
PETER S. HARMER, et ux,
CHRISTINE C. HARMER,
Plaintiffs,
v.
WILBUR O. COLOM and
THE COLOM LAW FIRM, LLC,
Defendants.

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No. 3:13-cv-00286
Judge Sharp
Magistrate Judge Knowles

MEMORANDUM
Defendants Wilbur O. Colom (“Colom”) and The Colom Law Firm, LLC (“Defendants”)
filed a Motion to Dismiss Plaintiffs’ Amended Complaint (Docket Entry No. 63), to which
Plaintiffs Peter S. Harmer and wife, Christine C. Harmer (“Plaintiffs”) filed a response (Docket
Entry No. 69).1 For the reasons discussed herein, the Court will grant Defendants’ motion.
RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Plaintiffs Peter (“Harmer”) and Christine Harmer (“C. Harmer”) are resident citizens of
Franklin, Tennessee. Wilbur Colom (“Colom”) is a Mississippi attorney and the Colom Law
Firm is a small firm of three attorneys located in Columbus, Mississippi (“Defendants”). The
instant lawsuit and Plaintiffs’ allegations arise from Defendants’ representation of an individual,
Donald DePriest (“DePriest”), in a lawsuit he brought against Harmer.

1

In the response memorandum, Plaintiffs refer the Court also to their previously filed briefs entered at
Docket Entry Numbers 12, 13, 30 and 41 for support in opposition.
1

On December 21, 2005, DePriest was publicly nominated, by the President of the United
States, to serve as a member on the Board of the Tennessee Valley Authority (“TVA”).2 While
on the TVA Board, from March 3, 2006 through April 10, 2009, DePriest served on the TVA
Board Audit & Ethics Committee. Over the next few years, numerous lawsuits were filed
against DePriest along with publically filed liens by the Internal Revenue Service for nonpayment of withholding taxes. On April 10, 2009, DePriest resigned, mid-term, from the TVA
Board.
On May 12, 2010, Harmer furnished to Jimmy Stobaugh (“Stobaugh”), at Telesaurus
Holdings, a competitor of Maritime Communications/Land Mobile, LLC (“Maritime”)(a
DePriest related company),3 a number of publicly accessible records from the Federal
Communications Commission (“FCC”)’s investigation of Maritime’s participation in August
2005 FCC License’s Auction. The documents provided by Harmer to Stobaugh evidenced
efforts by DePriest in September 2007 to redeem a counterfeit bearer bond in the amount of
$25,000,000 purportedly issued by Banco Central de Venezuela. The documents indicated the
attempt to redeem the counterfeit bearer bond less than two years after DePriest was sworn in as
a TVA Board member and was serving on the TVA Board Audit and Ethics Committee.
FCC initiated a public investigation, by formal proceedings, against Maritime relating to
false statements to the United States Government in Maritime’s acquisition of license at a 2005
auction by which the FCC granted certain licenses. As part of the public record created by the
FCC Maritime Investigation, DePriest was revealed to have personally guaranteed a loan, in the

2

Unless otherwise noted, the allegations are drawn from Plaintiffs’ Amended Complaint (Docket Entry
No. 32).

3

Maritime is a company ostensibly owned by DePriest’s wife but, in actuality, is controlled by and exists
for the benefit of DePriest.
2

amount of $200,000, at a 25% annum interest rate, due and payable September 26, 2009 to
Sextons, Inc. On November 14, 2011, Sextons, Inc. publicly filed suit against DePriest in the
United States District Court for the Northern District of Mississippi (Docket No. 1:11-CV-238AS) claiming breach of contract (“Sextons Lawsuit”).

The Sextons Lawsuit resulted in a

publicly-entered judgment against DePriest in the amount of $445,771.21, on August 27, 2012.
On July 16, 2010, DePriest, by and through his counsel, Defendants, initiated litigation
against Harmer for defamation, tortious interference with business relationships, and intentional
infliction of emotional distress in the United States District Court for the Northern District of
Mississippi (“Mississippi Litigation”).4

Before preparing and filing the suit, in July 2010,

Defendants wrote a letter, sent by email and by Federal Express, received by Harmer in Franklin,
Tennessee, making unsubstantiated accusations against Harmer for making false statements
about DePriest. The June 16, 2010 letter included the following concluding paragraph:
Mr. ... DePriest demands that you retract the statements you made to Scott Baker,
the Knoxville News Sentinel, the Nashville Tennessean, any courts of law, and all
other organizations and individuals, and have copies of these retractions delivered
to ... DePriest. Mr. ... DePriest also demands that you cease and desist from any
further attempts to injure or interfere with his business or personal reputation.
This is your opportunity to resolve the matter without legal expense and exposure
to liability and damages. If you fail to respond to this demand, Mr. ... DePriest
will commence legal proceedings against you.
Very Truly Yours,
The Colom Law Firm, LLC
By: /s/__________________
Wilbur O. Colom

4

The case is styled Donald R. DePriest v. Peter S. Harmer and Does 1-10, 1:10CV177-P-D. Generally,
DePriest claimed that in June 2005, Harmer requested that DePriest aid him in committing fraud upon the
court. Harmer wanted DePriest to state that he held stock in a corporation of which DePriest was
chairman, so the sale of the stock could be part of his bankruptcy reorganization. DePriest refused. Since
DePriest refused to participate in the fraud, Harmer allegedly embarked on a malicious campaign to
interfere with DePriest’s business and harm his reputation. See (Docket Entry No. 66-1, DePriest
Complaint at ¶¶ 14-15).
3

Harmer did not respond to the letter. The lawsuit was filed ten days later on July 16, 2010.
Harmer had no money to retain counsel to represent him. Believing that he had no money to
retain counsel to defend the claims stated in the lawsuit, Defendants maliciously drafted and filed
the Complaint with the intent of forcing Harmer to “capitulate to the demand of [DePriest] to
cease and desist speaking the truth about [him].” (Amed. Compl. at ¶ 140).

Furthermore,

because Harmer had no money with which to retain counsel, his options were to proceed with a
pro se defense or “to capitulate to Mr. Colom’s use of the perversely served MS District Court
order (summons) as a Damocles sword.” (Id. at ¶ 141). Harmer filed motions to dismiss the
lawsuit, responded to interrogatories, served interrogatories and other pretrial discovery and,
otherwise, attempted to defend the claims.
On June 1, 2011, Colom placed a telephone call to Harmer, which was received in
Franklin, Tennessee and was recorded. During the recorded conversation, Colom stated to
Harmer that DePriest only desires for Harmer to leave him alone and that DePriest knows that
Harmer “can’t unring any bell that’s rung” but DePriest “doesn’t want any more bells rung.”
(Amed. Compl. at ¶ 144). During the same conversation, Colom advised Harmer that DePriest
did not want him saying anything else to anybody that would hurt DePriest’s business. Colom
further stated that he was going to call DePriest and advise him that he needed to get another
lawyer to keep pressing the claims against Harmer because DePriest was “not ever gonna collect
any money from you [Mr. Harmer]” and “you’re [Mr. Harmer] not ever gonna collect any money
from him unless something fortunate happens.” (Id. at ¶ 146).
On June 15, 2011, the Mississippi District Court, in DePriest’s lawsuit, sua sponte,
entered what was entitled “Order Staying Case Until The Conclusion Of The Investigation By
The Federal Communications Commission Of Maritime Communications/Land Mobile LLC, EB

4

Docket NO. 11-71:FCC 11-64” (“Stay Order”). On June 15, 2011, DePriest left a voicemail
message recorded as follows:
Hey Peter [Harmer], its Don [DePriest]. 662-425-3167. I’m out of the country
where you’ve probably been any number of times, including prep school. So just
called, Will [Colom] had suggested that we have a chat and see if we could get
together. Thanks.
On August 21, 2012, Harmer, pro se, filed a motion to lift the Stay Order. On August 30,
2012, Colom telephoned Harmer offering to dismiss DePriest’s lawsuit, without prejudice. In
response to the offer to dismiss, Harmer informed Colom that he had to think about that offer.5
On August 31, 2012, at 3:57 p.m., CDT, Colom emailed Harmer in Williamson County,
Tennessee, reading as follows:
I just had a discussion with Don [DePriest]. He will agree to dismissal with
prejudice with the understand (sic) that neither you nor him (sic) will make any
public statement about the dismissal and you will not disclose the dismissal to any
third party who will then make a public statement. Of course, we can’t prevent
people from looking at public files but you will not call it to anyone’s attention.
On September 5, 2012, at 11:21 a.m., CDT, Harmer emailed Colom stating as follows:
Thank you for your telephone call last Thursday evening and subsequent email on
Friday concerning the below attached.
It is with respect that I reject the dismissal settlement agreement.
(Amed. Compl. at ¶¶ 155-156).
On September 6, 2012, Colom and The Colom Firm, for DePriest, filed a motion to
dismiss the lawsuit without prejudice. Before Harmer received a copy of the motion, the
Mississippi District Court granted the unilateral motion and entered a judgment dismissing
DePriest’s lawsuit.
5

The reason Harmer had to think about Colom’s “without prejudice” offer stemmed from the fact that a
“without prejudice” offer to dismiss “would illusory [sic], especially in light of the trauma to Harmer
from spending two (2) years, for no reason other than the Perverse Process, subject to the coercive
plenary jurisdiction of the MS District Court.” (Id. at ¶ 154).
5

ANALYSIS
Plaintiffs brought this action against Defendants claiming “abuse of process and
malicious prosecution were successfully used to intentionally inflict emotional distress aimed at
coercing Harmer, by threat of a $40,000,000 judgment, to cease exercising [his] First
Amendment rights to free speech, particularly his right to inform official governmental agencies
about Defendants’ client.” (Docket Entry No. 72 at 1). Defendants filed a Motion to Dismiss
contending the Court does not have personal jurisdiction over Defendants, a Mississippi resident
and Mississippi limited liability company, and alternatively, Plaintiffs have failed to state a cause
of action for which relief may be granted.6
I.

Standard of Review
In the context of a Rule 12(b)(2) motion based on lack of personal jurisdiction, the

plaintiff bears the burden of establishing the existence of personal jurisdiction. Air Prods. &
Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (citing Serras v. First
Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989)). A district court may address such
a motion on the parties' submissions or it may permit limited discovery and hold an evidentiary
hearing. Id. When, as here, the Court does not conduct an evidentiary hearing and relies solely
on written submissions and affidavits to resolve the Rule 12(b)(2) motion, “the plaintiff need
only make a prima facie showing of jurisdiction. In this situation, [the Court] will not consider
facts proffered by the defendant that conflict with those offered by the plaintiff, and [it] will
construe the facts in a light most favorable to the nonmoving party.” Indah v. S.E.C., 661 F.3d
914, 920 (6th Cir. 2011) (internal citations and quotations omitted). Because the Court relies
solely on the written submissions and affidavits to resolve the jurisdictional issue, the burden on
6

The Court will rule in favor of Defendants on the issue of personal jurisdiction, and therefore, will not
conduct an analysis as to the failure to state a claim argument.
6

Plaintiffs is “relatively slight.” See Air Prods., 503 F.3d at 549 (citing Am. Greetings Corp. v.
Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988)).
In diversity cases, federal courts apply the law of the forum state, subject to constitutional
limitations, to determine whether personal jurisdiction exists. Aristech Chem. Int'l Ltd. v. Acrylic
Fabricators Ltd., 138 F.3d 624, 627 (6th Cir.1998); Reynolds v. Int'l Amateur Athletic Fed'n, 23
F.3d 1110, 1115 (6th Cir. 1994). Thus, a court must look not only to the forum state's long-arm
statute, but also to the due process requirements of the United States Constitution. Aristech, 138
F.3d at 627; Reynolds, 23 F.3d at 1115. Tennessee's long-arm statute, Tenn.Code Ann. § 20–2–
214, expands the jurisdiction of Tennessee courts to the full limit permitted by due process.
Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 645 (Tenn. 2009). When a state's long-arm
statute reaches as far as the limits of the Due Process Clause, the two inquiries merge, and the
Court need only determine whether the exercise of personal jurisdiction violates constitutional
due process. Aristech, 138 F.3d at 627.
“Due process requires that a defendant have minimum contacts ... with the forum State ...
such that he should reasonably anticipate being haled into court there.” Schneider v. Hardesty,
669 F.3d 693, 701 (6th Cir. 2012) (quoting World–Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291, 297 (1980)). This requirement ensures that the exercise of jurisdiction does not
“offend traditional notions of fair play and substantial justice.” See Int'l Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Schneider, 669 F.3d at 701. Depending on
the type of minimum contacts in a case, personal jurisdiction can take one of two forms, general
or specific. Air Prods., 503 F.3d at 550.

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II.

Application of Law
A. General Jurisdiction
The Court first considers whether due process permits the imposition of general

jurisdiction under the facts of this case. “General jurisdiction exists when a defendant's contacts
with the forum state are of such a continuous and systematic nature that the state may exercise
personal jurisdiction over the defendant even if the action is unrelated to the defendant's contacts
with the state.” Harris, 281 Fed. Appx. at 492. The Amended Complaint in this case does not
allege Defendants maintain an office in Tennessee, are registered to do business in Tennessee,
have employees in Tennessee, nor own property in Tennessee – and such lack thereof would not
support the notion of a “continuous and systematic nature” with the state. Rather, the Amended
Complaint focuses on Defendants involvement in the underlying litigation in Mississippi, and
alleges Defendants availed themselves of the privilege of acting in Tennessee during that
litigation by engaging Plaintiff during the litigation while he was a resident of Tennessee.
Moreover, Plaintiffs appear to argue that Tennessee is more convenient for them and was
incredibly inopportune to litigate the prior case in Mississippi.7

Although unfortunate for

Harmer, it is not the position of the Court to consider any such matters that occurred in the
previous litigation. Furthermore, due process requires the Court to consider the appropriateness
of its jurisdiction over Defendants, not whether Plaintiffs would be inconvenienced by pursuing
this action elsewhere. Schneider, 669 F.3d at 701. Plaintiffs have not established any contacts
with Tennessee that would subject Defendants to Tennessee’s general jurisdiction.

7

In support, Plaintiffs make the following argument: “Plaintiff had no contact with Mississippi. All (as in
100%) of the acts/omissions alleged against Plaintiff occurred in places other than Mississippi. Yet,
Defendants haled Plaintiff P. Harmer into court in Mississippi, a state with which Plaintiff P. Harmer had
never had any contact of any kind, save one very brief drive that had absolutely nothing to do with this
case. Indeed, Defendants, illustratively speaking, launched a harpoon from Mississippi into Tennessee
and forcefully reeled Plaintiff P. Harmer into Mississippi from Tennessee.” (Docket Entry No. 69 at 3).
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B. Specific Jurisdiction
The Court now turns to specific personal jurisdiction. As noted, Plaintiff’s sole showing
in favor of personal jurisdiction involves Defendants’ actions during the Mississippi litigation.
“Specific jurisdiction is confined to the adjudication of issues deriving from, or
connected with, the very controversy that establishes jurisdiction.” Indah, 661 F.3d at 920
(quoting Goodyear Dunlop Tires Organization v. Brown, ––– U.S. ––––, ––––, 131 S.Ct. 2846,
2851, 180 L.Ed.2d 796 (2011)). That is, specific jurisdiction “exposes the defendant to suit in
the forum state only on claims that ‘arise out of or relate to’ a defendant's contacts with the
forum.” Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997) (citing
Helicopteros Nacionales de Colombia S.A., v. Hall, 466 U.S. 408, 414–415 & nn. 8–10, 104
S.Ct. 1868, 80 L.Ed.2d 404 (1984)). The United States Court of Appeals for the Sixth Circuit
has developed three criteria for determining whether specific jurisdiction exists over a particular
defendant:
First, the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state. Second, the cause of
action must arise from the defendant's activities there. Finally, the acts of the
defendant or consequences caused by the defendant must have a substantial
enough connection with the forum state to make the exercise of jurisdiction over
the defendant reasonable.

S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). Thus, for the exercise
of specific personal jurisdiction to be appropriate, Defendants must have purposefully availed
themselves of the privilege of acting or causing a consequence in Tennessee, the cause of action
must arise from Defendants’ activities in Tennessee, and Defendants’ acts or the consequences of
their acts must have a substantial enough connection with Tennessee to make the exercise of
personal jurisdiction reasonable. Mohasco, 401 F.2d at 381.

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Plaintiffs allege that because Harmer was served with process in Tennessee in the prior
Mississippi litigation, that this subjects Defendants to the personal jurisdiction of this Court.
Furthermore, Plaintiffs add that the communication between the parties also justifies personal
jurisdiction of Defendants. More specifically, Plaintiffs aver,
… there are the telephone calls and emails into Williamson County, Tennessee []
from Defendants [] to [] Harmer, explicitly seeking from [] Harmer an agreement
to remain silent about the client and the lawsuit accompany the perversely
obtained process in return for Defendants [] removing the coercive force of the
perversely obtained process. [sic].
… it would be hard to conceive of circumstances less likely to be classified as
fortuitous, happenstance or isolated. Defendants [] acted purposefully with a
well-thought-out plan to inflict a grave threat and massive hardship on [] Harmer
for a prolonged period.
Everything in the Complaint, [], states to be fact about Defendants [] speaks of
torts which Defendants [] came (through their agent, the process server) to the
Middle District of Tennessee to effectuate. On principle, this is more than merely
engaging in tortious contact outside Tennessee to cause a consequence in
Tennessee.
But, causing consequences in Tennessee could not have been more deliberately
designed, if stood on the Mississippi side of the boundary and fired a projectile
into [] Harmer in Tennessee.
Defendants [] planned the ultimate consequence to occur in the Middle District of
Tennessee with a plethora of consequences in the Middle District of Tennessee
between the personal service and the attempt to accomplish ultimate consequence.

(Docket Entry No. 13 at 10).
Defendants respond that Plaintiffs have failed to meet the burden of establishing that
personal jurisdiction over Defendants is proper. More specifically, Defendants purport,
At best, Plaintiffs have pled five communications that were initiated in
Mississippi but received in Tennessee, which Defendants were required to
undertake at the direction and instruction of their client, not of their own volition.
***

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Of the 169 separately numbered paragraphs in Plaintiffs’ Amended Complaint,
only six relate to the State of Tennessee in any way:
1. Mr. and Mrs. Harmer are currently residents of Franklin, Williamson County,
Tennessee. [Am. Compl., ¶¶ 1-2].
2. On June 16, 2010, attorney William Colom, acting on behalf of DePriest, sent a
demand letter to Harmer which he received at his residence in Tennessee. [Am.
Compl., ¶¶133-134].
3. After filing the Mississippi litigation on July 16, 2010, a process server served
Harmer at his residence. [Am. Compl., ¶131].
4. On June 1, 2011, attorney William Colom, acting on behalf of DePriest, called
Harmer, which Harmer answered while he was in the State of Tennessee.
5. On August 30, 2012, attorney William Colom, acting on behalf of DePriest,
called Harmer while Harmer was in Tennessee. [Am. Compl., ¶151].
6. On August 31, 2012, attorney William Colom, acting on behalf of DePriest,
drafted an email to Harmer which Harmer opened and responded to while he was
in Tennessee. [Am. Compl., ¶¶155-156].
Plaintiffs allege that because Mr. Harmer was served with service of process in
Tennessee, that this action subjects Defendants to the personal jurisdiction of this
Court through purposeful availment. However, the summons was issued by the
United States District Court for the Northern District of Mississippi for a lawsuit
filed in that court. Further, for purposes of commencing and prosecuting the
Mississippi litigation, Defendants did not purposely avail themselves of the
privileges and protection of Tennessee law.
(Docket Entry No. 66 at 7-8).
i. Purposeful Availment
Plaintiffs fail on the first prong of the three-part test to establish specific personal
jurisdiction: that “the defendant must purposefully avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state.” Mohasco, 401 F.2d at 381. Purposeful
availment is “something akin to a deliberate undertaking,” that is, a deliberate effort by the
defendant to direct its activities toward, and to make contact with, the forum. Bridgeport Music,
Inc. v. Still N The Water Pub., 327 F.3d 472, 478 (6th Cir. 2003). Purposeful availment exists
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“when the defendant's contacts with the forum state proximately result from actions by the
defendant himself that create a substantial connection with the forum state, and when the
defendant's conduct and connection with the forum are such that he should reasonably anticipate
being haled into court there.” Id. (internal quotation omitted).
Plaintiffs’ availment argument boils down to a handful of communications and the
service of a summons in the Mississippi litigation. These communications were a cease and
desist letter, two telephone calls, and an email exchange between Harmer and Colom. Although
telephone calls or emails may serve as the basis for personal jurisdiction in certain
circumstances, those communications must “form the bases for the action.” Intera Corp. v.
Henderson, 428 F.3d 605, 616 (6th Cir. 2005); Neal v. Janssen, 270 F.3d 328, 332 (6th Cir.
2001). Furthermore, the remaining allegation on which Plaintiffs appear to base jurisdiction is
the service of process obtained by a process server in Tennessee, where Harmer lived while the
Mississippi action was ongoing. It appears to the Court from these allegations that the nature of
any contact Defendants had regarding these communications was based purely on the fact that
Harmer happened to live in Tennessee at the time of the Mississippi litigation. This is simply
insufficient to establish personal jurisdiction. Consequently, the first prong of the Mohasco test
has not been met.
ii. “Arising From”
A cause of action “arises from” the defendant's contacts with the forum state when the
cause of action has a “substantial connection” to the defendant's forum state activities, that is,
“where a defendant's contacts with the forum state are related to the operative facts of the
controversy.” Tharo Systems, Inc. v. Cab Produkttechnik GMBH & Co. KG, 196 Fed. Appx.
366, 371 (6th Cir. 2006). As discussed in supra, Defendants could not reasonably anticipate

12

being haled into court in Tennessee to defend a lawsuit based on these few minimal contacts with
the State. Therefore, the second prong of the test has not been satisfied.
iii. Reasonableness
If a court determines specific jurisdiction is proper under the first two prongs – which the
Court has not done here – it then must decide whether imposition of personal jurisdiction is
reasonable. Mohasco, 401 F.2d at 381. The third prong of the test mandates that “the acts of the
defendant or consequences caused by the defendant must have a substantial enough connection
with the forum state to make the exercise of jurisdiction over the defendant reasonable.” Youn v.
Track, Inc., 324 F.3d 409, 419 (6th Cir. 2003) (citation omitted). Generally, when considering
whether it is reasonable to exercise personal jurisdiction over a non-resident defendant, a court
must consider several factors including the following: (1) the burden on the defendant; (2) the
interest of the forum state; (3) the plaintiff's interest in obtaining relief; and (4) other states'
interest in securing the most efficient resolution of the controversy. CompuServe, Inc. v.
Patterson, 89 F.3d 1257, 1268 (6th Cir. 1996). Defendants are residents (and a limited liability
company) of Mississippi and would be substantially burdened if they were compelled to litigate
this case in Tennessee given the fact that neither resides in the State.

Further, although

Plaintiffs’ interest in obtaining relief is important, there is no reason to suppose such relief could
not be had in a Mississippi court. Moreover, since events surrounding the Mississippi lawsuit
are the crux of Plaintiffs’ request for relief, it appears that the state of Mississippi may have a
strong interest in resolving this controversy.

Accordingly, the third prong of the specific

jurisdiction test has not been satisfied.
The Court finds that due process does not permit the imposition of personal jurisdiction
under the facts of this case. Schneider, 669 F.3d at 701. Consequently, Plaintiffs have not met

13

their burden of establishing personal jurisdiction in Tennessee. Therefore, the claims against
Defendants will be dismissed without prejudice.
CONCLUSION
For all of the reasons stated, Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint (Docket Entry No. 63) will be granted, and this case will be dismissed.
An appropriate Order will be entered.

_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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