Meeker et al v. Starfish Children's Services et al

Filing 32

ORDER granting in part and denying in part Defendants' 20 Motion to Dismiss for Failure to State a Claim. If Plaintiffs choose to do so, they may amend their Complaint within twenty-one (21) days from the date of this Order. Signed by Judge Richard A Jones. (TH)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT MEEKER and AMY
MEEKER, individually, the marital
community comprised thereof, and on
behalf of C.M., a minor,

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CASE NO. C17-376 RAJ
ORDER

Plaintiffs,

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v.

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STARFISH CHILDREN’S
SERVICES, PATRICK
McLAUGHLIN and CYNTHIA
McLAUGHLIN and the marital
community comprised thereof,
MICHAEL BOSMANN and LISA
ANN BOSMANN and the marital
community comprised thereof, and
JANE DOES 1-2,
Defendants.

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This matter comes before the Court on Defendants Michael and Lisa Ann

25 Bosmann’s motion to dismiss. Dkt. # 20. Plaintiffs do not oppose the motion as to Ms.
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ORDER - 1

1 Bosmann but do so as to Mr. Bosmann. Dkt. # 251. Therefore, the Court GRANTS the
2 motion as to Ms. Bosmann and GRANTS in part and DENIES in part the motion as to
3 Mr. Bosmann.
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I.

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The following is taken from Plaintiffs’ Complaint, which is assumed to be true for

BACKGROUND

6 the purposes of this motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.
7 2007).
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Plaintiffs adopted C.M. from a foster home in China run by Starfish Children’s

9 Services (“Starfish”). See generally Dkt. # 1 (Complaint). Plaintiffs learned that C.M.
10 suffered from spina bifida, which “limited her physical, cognitive, behavioral, and social
11 abilities.” Id. at ¶ 3.03. Plaintiffs were familiar with adopting children with special
12 needs, and therefore were not dissuaded from adopting C.M. with knowledge of her spina
13 bifida. Id. However, upon arriving in China to pick up C.M. and bring her home to the
14 U.S., Plaintiffs realized that C.M. might have medical issues beyond the spina bifida. Id.
15 at ¶ 3.04.
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Plaintiffs sought information from Starfish to learn the extent of C.M.’s health

17 issues but received few answers. Id. at ¶ 3.07. After engaging several health
18 practitioners, Plaintiffs were informed that C.M. suffered from epilepsy, severely rotten
19 teeth, hydrocephalus, cerebral palsy, scoliosis, brain cerebella dysplasia, self-harm,
20 blindness, deafness, sleep troubles, and hepatitis C. Id. Plaintiffs soon learned that C.M.
21 would have a much shorter lifespan than they were prepared to accept. Id.
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The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run

24 around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash.
LCR 7(e). Moreover, several courts have observed that “citations are highly relevant in a legal brief” and

25 including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly discourages the parties

26 from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Co-op Bank,
22 F.3d 899-900 (9th Cir. 1994). The Court may consider striking any future brief that contains

27 excessive footnotes.

ORDER - 2

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Plaintiffs allege that Starfish was aware of C.M.’s health issues beyond the spina

2 bifida but chose not to disclose the information to Plaintiffs for fear that Plaintiffs would
3 decide against adopting C.M. Id. at ¶¶ 3.08, 3.17-3.19. Plaintiffs have already incurred
4 more than $500,000 in medical bills to treat C.M. and expect more bills in the future. Id.
5 at ¶ 3.24.
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In March 2017, Plaintiffs sued Starfish and its Board of Directors for various

7 claims arising out of fraud and misrepresentations. See id. The Bosmanns—Mr.
8 Bosmann was a member of Starfish’s Board—are now before the Court seeking dismissal
9 of the claims asserted against them.
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II.

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Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a

LEGAL STANDARD

12 claim. The rule requires the court to assume the truth of the complaint’s factual
13 allegations and credit all reasonable inferences arising from those allegations. Sanders,
14 504 F.3d at 910. A court “need not accept as true conclusory allegations that are
15 contradicted by documents referred to in the complaint.” Manzarek v. St. Paul Fire &
16 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must point to factual
17 allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
18 Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids
19 dismissal if there is “any set of facts consistent with the allegations in the complaint” that
20 would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679
21 (2009).
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A court typically cannot consider evidence beyond the four corners of the

23 complaint, although it may rely on a document to which the complaint refers if the
24 document is central to the party’s claims and its authenticity is not in question. Marder v.
25 Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to
26 judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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ORDER - 3

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III.

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Plaintiffs plead seven causes of action in their Complaint. Dkt. # 1 (Complaint) at

DISCUSSION

3 ¶¶ 4.01-4.35. The Court will analyze the claims in turn below.
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A. Wrongful Adoption

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1. Choice of Law

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Plaintiffs bring a wrongful adoption claim, arguing that Defendants induced them

7 into adopting C.M., causing them to incur significant monetary losses. Dkt. # 1
8 (Complaint) at ¶¶ 4.01-4.06. Mr. Bosmann first argues that Texas law governs this claim,
9 and because Texas does not recognize a wrongful adoption cause of action, this claim
10 fails. Dkt. # 20 at 6. Alternatively, Mr. Bosmann argues that the claim fails under
11 Washington law due to insufficient pleading. Id. at 9.
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A federal court sitting in diversity applies state substantive law and federal

13 procedural law. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); Erie
14 R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Because substantive law is at issue, the
15 Court looks to state law. “In determining what state law to apply, a federal court applies
16 the choice-of-law rules of the state in which it sits.” Kohlrautz v. Oilmen Participation
17 Corp., 441 F.3d 827, 833 (9th Cir. 2006). In Washington, courts “first determine whether
18 an actual conflict between Washington and other applicable state laws exists.” Kelley v.
19 Microsoft Corp., 251 F.R.D. 544, 550 (W.D. Wash. 2008). “If an actual conflict exists,
20 the Court must determine the forum or fora that have the ‘most significant relationship’ to
21 the action to determine the applicable law.” Id. (citations omitted).
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Mr. Bosmann does not cite an actual conflict between Washington and Texas law

23 regarding wrongful adoption claims. Instead, Mr. Bosmann leaps to the second step in
24 the analysis as if the Court could assume that an actual conflict exists. See Dkt. # 20 at 725 8. But, based on Mr. Bosmann’s representations, it is unclear whether an actual conflict
26 exists. See Dkt. # 20 at 8 (stating that Mr. Bosmann is “unaware of any authority
27 supporting a claim for wrongful adoption under Texas law” because “[c]ases that have

ORDER - 4

1 surveyed jurisdictions do not identify Texas as a state that recognizes wrongful adoption
2 claims.”). Moreover, in his reply brief, Mr. Bosmann does not contest Plaintiffs’
3 contention that Texas would likely recognize a wrongful adoption claim similar to
4 Washington, thereby eliminating any potential conflict between the states’ laws. See
5 generally Dkt. # 27.2 The Court will not do Mr. Bosmann’s work for him, and if he
6 chooses not to contest this point, then the Court is inclined to find that, on the record
7 before it, no actual conflict exists between Washington and Texas law such that the Court
8 must engage in a choice of law analysis. Therefore, the Court will apply Washington law
9 to Plaintiffs’ wrongful adoption claim. Kelley, 251 F.R.D. at 550 (“In the absence of a
10 conflict, Washington law applies.”).
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2. Washington’s Statute Creating a Duty to Disclose Information in the Adoption

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Context
In Washington, wrongful adoption claims arise from the failure to disclose certain

14 medical or social history. See RCW 26.33.350 (creating a statutory duty to disclose
15 adoptee’s medical/psychological history); RCW 26.33.380 (creating a statutory duty to
16 disclose adoptee’s social history). Mr. Bosmann argues that only adoption placement
17 agencies are liable under Washington’s adoption disclosure statutes. Dkt. # 20 at 9. Mr.
18 Bosmann’s argument is based on McKinney v. Washington, in which the Washington
19 Supreme Court granted adoptive parents a cause of action for negligent failure to meet
20 the disclosure requirements under RCW 26.33.350.3 See McKinney v. Washington, 134
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The Court notes that Mr. Bosmann conspicuously failed to mention Tex. Fam. Code
Ann. § 162.005, which appears to be similar to RCW 26.33.350. Section 162.005(d) states, in
part, that “[i]f the child has been placed for adoption by a person or entity other than the
department, a licensed child-placing agency, or the child’s parent or guardian, it is the duty of the
person or entity who places the child for adoption to prepare the [report on the available health,
social, educational, and genetic history of the child to be adopted].” Mr. Bosmann does not
discuss how this statute may or may not compare to the Washington statute at issue, and the
Court declines to do this work on his behalf.
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Prior to McKinney, Washington recognized “causes of action for fraud and intentional
misrepresentation in failing to disclose pertinent information about an adoptive child[.]”

ORDER - 5

1 Wash. 2d 388, 389–90, 950 P.2d 461, 462 (1998). RCW 26.33.350 states, in relevant
2 part,
Every person, firm, society, association, corporation, or state
agency receiving, securing a home for, or otherwise caring for
a minor child shall transmit to the prospective adopting parent
prior to placement and shall make available to all persons with
whom a child has been placed by adoption a complete medical
report containing all known and available information
concerning the mental, physical, and sensory handicaps of the
child.

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RCW 26.33.350(1).
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The court in McKinney found that “the Legislature has established the duty owed
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by adoption placement agencies in RCW 26.33.350[.]” McKinney, 134 Wash. 2d at 396.
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That the court directed its order to the Department of Social and Health Services (DSHS)
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specifically, or to “adoption placement agencies” generally, is not reflective of the true
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reach of RCW 26.33.350. Rather, it reflects the fact that the plaintiffs brought suit
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against DSHS rather than another entity recognized by RCW 26.33.350.
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If the Court were to adopt Mr. Bosmann’s restrictive reading of McKinney, then it
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would be effectively rewriting RCW 26.33.350. For if the Court only allowed suit
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against agencies, as defined by RCW 26.33.020, then it would be denying the
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Legislature’s clear wish for “every person, firm, society, association, [or] corporation” to
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assume the duty to disclose medical information to prospective adopting parents.
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Moreover, Mr. Bosmann notes that “Agency” is defined in RCW 26.33.020(7) as “any
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public or private association, corporation, or individual licensed or certified by the
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department as a child-placing agency . . . .” See Dkt. # 20 at 9. He appears to argue that,
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because McKinney and other cases discuss agencies as defined in this way, then the duty
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to disclose in RCW 26.33.350 must only apply to these agencies. That the remaining
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McKinney, 134 Wash. 2d at 394. McKinney expanded adoptive parents’ rights of action to

27 include claims for the negligent failure to meet these disclosure requirements. Id. at 389-90.

ORDER - 6

1 terms in RCW 26.33.350(1)—“person, firm, society, association, corporation”—are not
2 defined in RCW 26.33.020 does not negate their existence or render them meaningless.
3 Importantly, when federal courts construe statutes, they do “so as to avoid rendering
4 superfluous any parts thereof.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
5 104, 112 (1991); see also Hibbs v. Winn, 542 U.S. 88, 101 (2004); United States v.
6 Menasche, 348 U.S. 528, 538–539 (1955). As such, the Court declines to adopt Mr.
7 Bosmann’s narrow reading of McKinney and RCW 26.33.350(1).4
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The statutory duty to disclose in RCW 26.33.350 extends to Starfish and its board

9 members. Therefore, Plaintiffs may assert their wrongful adoption claims against
10 Starfish and its board members.
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To bring claims against Defendants for failing to disclose C.M.’s medical

12 information, Plaintiffs must establish that Starfish “breached its statutory duty of
13 disclosure and that such failure to disclose proximately caused plaintiff’s damages.”
14 Price v. State, 96 Wash. App. 604, 614–15, 980 P.2d 302, 308–09 (1999). Plaintiffs have
15 met their burden. In their Complaint, Plaintiffs state that they knew about C.M.’s spina
16 bifida but were left recklessly in the dark about a litany of other health issues from which
17 she suffered. Dkt. # 1 (Complaint) at ¶¶ 3.03, 3.07, 4.12. Plaintiffs further state that
18 Starfish and its Board were in possession of C.M.’s pertinent health information, id. at ¶¶
19 3.08-3.16, and failed to disclose it, id. at ¶ 3.17. Plaintiffs also state that Starfish and its
20 Board were grossly negligent in withholding the information in order to induce Plaintiffs
21 to adopt C.M. because Defendants knew that this information was material to prospective
22 parents. Id. at ¶¶ 3.19-3.21, 4.04. Had Plaintiffs known the extent of C.M.’s medical
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Mr. Bosmann claims that such an interpretation “would radically expand the holding of
McKinney far beyond what the Washington Supreme Court or the Washington Legislature
26 intended.” Dkt. # 27 at 5. The Court disagrees. Any other interpretation would undermine the
Legislature’s careful drafting and assail the “strong public policy” grounds asserted by McKinney
27 and Gibbs v. Ernst, 538 Pa. 193, 216, 647 A. 2d 882 (1994).

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ORDER - 7

1 issues, they would not have adopted her. Id. at ¶ 3.24. As a result of their reliance on
2 Defendants’ representations of C.M.’s medical information and subsequent adoption,
3 Plaintiffs have suffered damages. Id. at ¶ 3.24. Therefore, based on the allegations set
4 forth in the Complaint, Plaintiffs have stated a cause of action for wrongful adoption—
5 under a gross negligence standard—against Starfish and its Board, including Mr.
6 Bosmann.
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Mr. Bosmann argues that Starfish is not liable under RCW 26.33.350 given its

8 contractual releases. Dkt. # 20 at 11. He cites no authority suggesting that Starfish was
9 capable of contracting out of a statutory duty to provide certain medical information, and
10 the case he cites in the footnote of his reply brief focuses on “extra-contractual
11 representations” and not statutory duties. See Dkt. # 27 at 5-5; see also Petrobras Am.
12 Inc. v. Union Oil Co. of Cal., 177 F. App’x 460, 462 (5th Cir. 2006). Though the
13 agreement between Starfish and Plaintiffs states that it does not create a disclosure
14 obligation, it is silent on whether it exculpates any party from a statutory duty to disclose
15 information. See Dkt. # 21-1 at Exs. B, C, D. Based on the record before it and taking
16 Plaintiffs’ allegations as true, the Court cannot find at this stage in the litigation that
17 Starfish contracted out of its statutory duty—indeed, it does not appear that an
18 exculpatory clause was included in any agreement between the parties—to disclose
19 C.M.’s medical information to Plaintiffs.
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Mr. Bosmann also argues that Plaintiffs did not adequately plead their causes of

21 action against the individual defendants. Dkt. # 20 at 10-11. The Court disagrees.
22 Plaintiffs clearly stated that they would refer to all defendants as “Starfish”, see Dkt. # 1
23 (Complaint) at ¶ 3.01, and alleged all their claims against “Defendants”, see id. at ¶¶
24 4.01-4.35. As a member of Starfish’s Board of Directors, the Court finds that Mr.
25 Bosmann had notice through Plaintiffs’ Complaint about what he would be called upon to
26 defend. See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 841 (9th Cir.
27 2007) (finding that the defendant’s “argument ignores the purpose of a complaint under

ORDER - 8

1 Rule 8—to give the defendant fair notice of the factual basis of the claim and of the basis
2 for the court’s jurisdiction. ‘Specific facts are not necessary . . . .’ [The defendant] would
3 essentially impose a heightened pleading . . . even though the Supreme Court has
4 repeatedly instructed us not to impose such heightened standards in the absence of an
5 explicit requirement in a statute or federal rule.”) (citations omitted). Therefore, the
6 Court finds that Plaintiffs sufficiently pled their claims.
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Along with their claim for gross negligence, Plaintiffs also assert claims for

8 ordinary negligence. These claims fail as to Mr. Bosmann.
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B. Negligence

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Mr. Bosmann cannot be liable for ordinary negligence per RCW 4.24.264. Dkt. #

11 20 at 12-13. RCW 4.24.64 states:
(1) Except as provided in subsection (2) of this section, a
member of the board of directors or an officer of any nonprofit
corporation is not individually liable for any discretionary
decision or failure to make a discretionary decision within his
or her official capacity as director or officer unless the decision
or failure to decide constitutes gross negligence.

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(2) Nothing in this section shall limit or modify in any manner
the duties or liabilities of a director or officer of a corporation
to the corporation or the corporation's members.

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RCW 4.24.264. Plaintiffs counter without citing any authority that RCW 4.24.264 does
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not apply because Mr. Bosmann was not exercising discretionary authority. Dkt. # 29 at
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2-3.
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“RCW 4.24.264(1) sets a gross negligence standard for liability of directors in the
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course of their official actions, while subsection (2) preserves any different statutory
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standard that might apply between directors and the corporation or its members.” Waltz
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v. Tanager Estates Homeowner’s Ass’n, 183 Wash. App. 85, 91, 332 P.3d 1133, 1135
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(2014). Plaintiffs do not allege that Mr. Bosmann was acting outside his official duties in
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allegedly failing to disclose C.M.’s medical information. As such, the Court dismisses
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ORDER - 9

1 any claims against Mr. Bosmann that arise from ordinary negligence, including claims
2 related to Mr. Bosmann’s alleged negligence in failing to disclose medical information
3 and negligent misrepresentation.
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C. Fraud and Intentional Misrepresentation
Plaintiffs bring a claim for fraud and intentional misrepresentation regarding

6 representations that Starfish allegedly made through its website and by intentionally
7 withholding C.M.’s medical information. Dkt. # 1 (Complaint) at ¶¶ 4.05, 4.23. These
8 claims are grounded in fraud and therefore must be pleaded with particularity. Fed. R.
9 Civ. P. 9(b); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003)
10 (“It is established law, in this circuit and elsewhere, that Rule 9(b)’s particularity
11 requirement applies to state-law causes of action. ‘[W]hile a federal court will examine
12 state law to determine whether the elements of fraud have been pled sufficiently to state a
13 cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be
14 stated with particularity is a federally imposed rule.’”) (quoting Hayduk v. Lanna, 775
15 F.2d 441, 443(1st Cir. 1985)). To satisfy Rule 9(b)’s heightened pleading requirement,
16 plaintiffs must assert allegations that are “specific enough to give defendants notice of the
17 particular misconduct . . . so that they can defend against the charge and not just deny that
18 they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th
19 Cir. 2009) (quotations and citations omitted). “Averments of fraud must be accompanied
20 by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess, 317 F.3d at
21 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997).
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The elements of a fraud claim in Washington are:
(1) representation of an existing fact; (2) materiality; (3)
falsity; (4) the speaker’s knowledge of its falsity; (5) intent of
the speaker that it should be acted upon by the plaintiff; (6)
plaintiff's ignorance of its falsity; (7) plaintiff’s reliance on the
truth of the representation; (8) plaintiff’s right to rely upon it;
and (9) damages suffered by the plaintiff.

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ORDER - 10

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Plaintiffs have pled their fraud claims with particularity. Specifically, Plaintiffs

2 claim that Starfish and its Board of Directors represented that C.M. suffered from spina
3 bifida but withheld information about her other medical conditions. Dkt. # 1 (Complaint)
4 at ¶¶ 3.07, 3.14. Plaintiffs claim that Defendants knew that C.M. had other health
5 conditions, such as epilepsy. Id. at ¶¶ 3.08-3.12. Plaintiffs further allege that Defendants
6 knew that this health information was material to prospective adopting parents like
7 Plaintiffs. Id. at ¶¶ 3.20, 3.21. Plaintiffs aver that Defendants withheld the information
8 from Plaintiffs, knowing that Plaintiffs would rightfully rely on the abridged medical
9 record, so that Plaintiffs would adopt C.M. with limited knowledge. Id. at ¶¶ 3.175, 3.19.
10 As a result, Plaintiffs claim that they have already incurred more than $500,000 in
11 medical bills, and they estimate that this amount will continue to grow. Id. at ¶ 3.24.
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Plaintiffs also allege a claim grounded in fraud and intentional misrepresentation

13 with regard to Defendants’ representations on its website that Starfish “create[s] a
14 medical history file for each child that details their history from the day they arrived to
15 the day they were adopted.” Id. at ¶ 4.23. For the same reasons detailed above, Plaintiffs
16 sufficiently describe a fraudulent scheme in which Defendants withheld information and
17 therefore knowingly failed to create an adequate medical file for Plaintiffs to review in
18 order to deceive prospective parents into an unviable adoption.
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D. Intentional Infliction of Emotional Distress
Plaintiffs allege a claim for intentional infliction of emotional distress (IIED),

21 stating that “Defendants engaged in extreme and outrageous behavior[.]” Dkt. # 1
22 (Complaint) at ¶ 4.30. To survive a motion to dismiss, Plaintiffs’ Complaint must show
23 that Defendants engaged in extreme and outrageous conduct that intentionally or
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Plaintiffs’ evidence includes emails from members of the Board who are speaking on

26 behalf of the Board. See, e.g., Dkt. # 1 (Complaint) at ¶ 3.17 (stating that “[t]he board gives you
a receipt that we all ‘get it’ . . . .”). Therefore, the Court finds that Plaintiffs specifically tied the

27 alleged fraudulent behavior to the board of directors, including Mr. Bosmann.

ORDER - 11

1 recklessly inflicted emotions distress, and Plaintiffs actually suffered severe emotional
2 distress as a result. Kloepfel v. Bokor, 149 Wash. 2d 192, 195, 66 P.3d 630, 632 (2003).
3 Plaintiffs’ burden on this claim is high, requiring a showing of behavior “so outrageous in
4 character, and so extreme in degree, as to go beyond all possible bounds of decency, and
5 to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 196
6 (internal quotations and citations omitted). Though the alleged circumstances of this case
7 are unfortunate and upsetting, they are similar to many wrongful adoption claims brought
8 by adoptive parents. Were the Court to find that a claim for IIED exists based on the
9 pleadings in this Complaint, it would effectively be authorizing a claim for IIED for any
10 wrongful adoption lawsuit. Plaintiffs have not shown that Mr. Bosmann acted
11 atrociously or in a way that is utterly intolerable. See, e.g., id. at 194 (defendant called
12 the plaintiff’s “home 640 times, her work 100 times, and the homes of the men she knew
13 numerous times as well.”). The Court does not find that Plaintiffs satisfied this burden
14 and therefore grants the motion as to the IIED claim with leave to amend.
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E. Respondeat Superior and Board of Director Liability
Plaintiffs’ final claims are titled “Respondeat Superior” and “Board of Director

17 Liability.” Dkt. # 1 (Complaint) at ¶¶ 4.32, 4.33-4.35. However, as Mr. Bosmann
18 alludes, these claims appear to be theories of liability that are encompassed by Plaintiffs’
19 other claims. Therefore, the Court dismisses these causes of action to the extent that they
20 have already been pled.
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IV.

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For the foregoing reasons, the Court GRANTS in part and DENIES in part

CONCLUSION

23 Defendants’ motion. Dkt. # 20. The Court GRANTS the motion as to Ms. Bosmann.
24 The Court further GRANTS the motion with prejudice as to the claims for negligence,
25 negligent misrepresentation, respondeat superior, and board of director liability alleged
26 against Mr. Bosmann. The Court GRANTS the motion without prejudice as to
27 Plaintiffs’ IIED claim against Mr. Bosmann. The Court DENIES the motion with regard

ORDER - 12

1 to the remaining claims. If Plaintiffs choose to do so, they may amend their Complaint
2 within twenty-one (21) days from the date of this Order.
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Dated this 8th day of February, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER - 13