Huntington National Bank v. Physician's Auditing and Billing Services Inc.

U.S. District Court, District of Minnesota June 4, 2024

Trial Court Opinion

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Huntington National Bank, successor-by-  Case No. 22-CV-2271 (JMB/DTS)    
merger to TCF National Bank,                                              

          Plaintiff,                                                 

    v.                                                                         ORDER 

Physician’s Auditing and Billing Services                                 
Inc. and Douglas Davis,                                                   

          Defendants.                                                


Mark G. Schroeder, Daniel N. Moak, Taft Stettinius & Hollister LLP, Minneapolis, MN, 
for Plaintiff Huntington National Bank.                                   
Mark K. Thompson, MKT Law, PLC, Minneapolis, MN, for Defendants Physician’s 
Auditing and Billing Services Inc. and Douglas Davis.                     


Defendant Physician’s Auditing and Billing Services Inc. (PABS) entered into a 
commercial loan agreement with Plaintiff Huntington National Bank (Huntington),1 which 
was  guaranteed  by  PABS’s  CEO,  Defendant  Douglas  Davis  (together  with  PABS, 
Defendants).    After  PABS  stopped  making  payments  on  the  loan,  Huntington  sued 
Defendants  for,  among  other  things,  breaching  the  commercial  loan  agreement  and 
guaranty.  Huntington now moves for summary judgment on its breach-of-contract claims.  
For the reasons set forth below, the Court grants in part and denies in part Huntington’s 

1 Huntington is the successor-by-merger to TCF National Bank.  Though some events 
referenced in this Order occurred prior to the relevant merger, for the sake of simplicity, 
Plaintiff will be referred to as “Huntington.”                            
motion for summary judgment on its contract claims (Counts I and II) and dismisses 
Huntington’s remaining non-contract claims (Counts III–VI).               

                        FACTS                                        
On  April  7,  2021,  PABS  purchased  computer  equipment  and  software  (the 
Equipment) for its business from a non-party equipment vendor for a total purchase price 
of $339,359.05.  (Doc. No. 1-1 [hereinafter, Compl.] at Ex. A.2)  PABS engaged a non-
party broker to facilitate this transaction.  (E.g., Doc. No. 28 ¶ 3; Doc. No. 24-2 at 18:16–
21:4.)                                                                    

To  finance  the  purchase  of  the  Equipment,  PABS  entered  into  an  Installment 
Payment Agreement (IPA) with Huntington on April 7, 2021.  (See Compl. at Ex. B 
[hereinafter, IPA].)  In order to obtain the loan financing, PABS assigned Huntington a 
security interest in the Equipment and made assurances to Huntington that PABS had 
already received and was satisfied with the Equipment.  (Compl. at Ex. D; IPA ¶¶ 3, 5.)  

To this end, PABS “confirm[ed], represent[ed], warrant[ed] and agree[d]” that, as of April 
7, 2021,                                                                  
     (i) all of the Software and Equipment described in the IPA has  
     been delivered to [PABS] at the Location set forth in the IPA   
     and has been accepted by [PABS] through a duly authorized       
     representative, [and]                                           
     . . . .                                                         


2 Huntington submitted a declaration of Jordan Shamblott, a Huntington “officer and 
financial recovery representative,” in which Shamblott verifies the truth and accuracy of 
the factual allegations in the Complaint and its exhibits.  (See Doc. No. 23 ¶¶ 3–4.) 
     (iii)  the  Software  and  Equipment  is  exactly  what  [PABS] 
     ordered and is satisfactory in all respects and has been accepted 
     by [PABS] . . . .                                               
(Compl. at Ex. D.)   Relatedly, PABS and  Huntington agreed that PABS alone bore 
responsibility for the Equipment in the event of “any loss, theft or destruction of, or damage 
to” it.  (IPA ¶ 5.)                                                       
Under the IPA’s terms, PABS was to repay Huntington over a five-year period in 
sixty monthly installment payments of $6,637.96 each, with the first installment due on 
May 8, 2021.  (Id. ¶ 2.)  Huntington and PABS also agreed that, if PABS failed to make a 

payment by or before the 18th day of any given month, Huntington had the right to impose 
a late fee up to 10% of the amount of the late payment.  (Id.)  PABS further agreed that its 
payment obligations under the IPA were “absolute and unconditional and shall not be 
subject to any defenses . . . of any kind” regardless of whether the Equipment “is installed 
or implemented to the satisfaction of [PABS]” or whether “any . . . distributor breaches 

any of its obligations, warranties or covenants relating to the [Equipment.]”  (Id. ¶ 10(a), 
(c).)                                                                     
The  IPA further  provides  that a  failure  by  PABS  to  timely  pay  any  monthly 
installment payment constitutes a material breach of the IPA, in which event Huntington 
would have the following available remedies, among others: (1) charging interest on the 

unpaid amount as liquidated damages; (2) accelerating all remaining payments, (3) making 
the remaining principal amount immediately due; (4) charging a penalty fee of 4% on the 
present value of future monthly installments; and (5) recovering expenses incurred by 
Huntington to enforce the IPA (including attorneys’ fees and costs).  (See id. ¶¶ 7(a), 8.) 
Davis,  PABS’s  CEO  and  sole  shareholder,  executed  a  Guaranty  of  PABS’s 
obligations to Huntington under the IPA (Doc. No. 28 ¶ 1; see also Compl. at Ex. E 

[hereinafter, Guaranty]), under which he “unconditionally and absolutely guarantee[d] the 
full and prompt payment and performance when due (at maturity, by acceleration, or 
otherwise) of all payments, rents, debts, liabilities, and other obligations of every type and 
description of [PABS] to [Huntington] . . . .”  (Guaranty.)  The Guaranty further provides 
that Davis’s liability as Guarantor extends to all costs and expenses incurred by Huntington 
in connection with enforcement of the IPA and/or Guaranty, plus interest.  (Id.) 

Upon receipt of PABS’s executed IPA and Equipment-receipt confirmation (among 
other things), Huntington paid the $339,359.05 principal loan amount directly to the non-
party equipment vendor, as expressly directed and authorized by PABS.  (Compl. at Ex. 
G.)  PABS thereafter made timely monthly installment payments until, as described below, 
either July or September 2022.  (See Doc. No. 23 ¶ 10, Ex. 3; Doc. No. 28 ¶ 5, Ex. B; Doc. 

No. 24-1 at Nos. 11, 12.)                                                 
Even though PABS confirmed to Huntington that it had received the Equipment 
before it executed the IPA, the undisputed record evidence shows that PABS never—
neither before executing the IPA nor after—received any equipment from the non-party 
equipment  vendor.    (Doc.  No.  28  ¶¶ 2–3,  6,  8,  Ex.  A.)    Davis  testified  that  PABS 

nevertheless made timely monthly installment payments to Huntington under the IPA for 
over a year because PABS “had the hope that the computer equipment would arrive and 
[Davis] wanted to honor the [loan] contract and be current when the equipment was 
located.”  (Id. ¶¶ 5–6, Ex. B.)  However, Davis testified that, by July 2022—approximately 
fifteen months after executing the IPA—the vendor still had not delivered the Equipment.  
(Doc. No. 24-2 at 64:2–11.)  Davis testified as follows: “it reached a point where it [waiting 

for the Equipment] was ridiculous; that I wasn’t going to get the equipment, so why pay 
for it?”  (Id. at 64:14–16.)                                              
Huntington  and  PABS  agree  that  PABS  stopped  making  monthly  installment 
payments to Huntington altogether in the latter half of 2022; however, they dispute when 
PABS first missed a payment.  Huntington argues and submitted record evidence showing 
that it last received payment from PABS in July 2022.  In support of its motion, Huntington 

submitted a document, through the declaration of a Huntington “officer and financial 
recovery representative” entitled “Payment History Report—All Contract Payments” that 
appears to show payments from May 8, 2021, through July 8, 2022; entries in August, 
September, and October 2022 read: “ACH RETURN CHECK—Unaut.”3  (Doc. No. 23 
¶¶ 1, 10, Ex. 3.)  Huntington also submitted documents showing that, in both August and 

September 2022, it notified PABS that its missed monthly payments constituted material 
breaches of the IPA.  (Compl. Exs. H, I.)                                 
Meanwhile, PABS argues and submitted conflicting record evidence showing that 
it last paid Huntington in September 2022.  It submitted, through a declaration from Davis, 
a report characterized as a “copy of an accounting record showing the payments [PABS] 

made to TCF Bank and Huntington National Bank through September 2022,” which 

3  The  record  evidence  submitted  in  connection  with  this  motion  do  not  interpret  or 
otherwise make clear the meaning or significance of these “ACH RETURN CHECK” 
entries.  (See Doc. No. 24-2 at 57:18–59:5.)                              
appears to show that PABS made monthly payments through September 2022.  (Doc. No. 
28 ¶ 5, Ex. B.)  Further, Davis testified that PABS stopped making payments to Huntington 

“by October of 2022,” and, in an answer to Huntington’s requests for admissions, PABS 
denied that it failed to make the August and September payments.  (Doc. No. 24-1 at Nos. 
11, 12, 13; Doc. No. 24-2 at 68:22–69:3.)                                 
On  September  19,  2022,  Huntington  filed  a  six-count  Complaint  against 
Defendants, which set forth the following claims:4 (1) a breach-of-contract claim against 
PABS for breach of the IPA; (2) a breach-of-contract claim against Davis for breach of the 

Guaranty;  (3) a  claim-and-delivery  action,  by  which  Huntington  seeks  to  recoup  the 
Equipment (collateral for the IPA loan) from PABS; (4) a priority-of-interest claim, by 
which Huntington seeks a declaration of the superiority of its interest in the Equipment;  
(5) an unjust-enrichment claim (in the alternative); and (6) a promissory/equitable-estoppel 
claim (in the alternative).  (Doc. No. 1 ¶¶ 35–71.)                       

                      DISCUSSION                                     
Huntington now moves for summary judgment on Counts I and II, its two breach-
of-contract claims.  (See Doc. No. 22.)  Summary judgment is warranted “if the movant 
shows that there is no genuine dispute as to any material fact and the movant is entitled to 
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  The evidence of the non-movant is to 

be believed, and all justifiable inferences are to be drawn in his favor.  Anderson v. Liberty 


4 In  accordance  with the  IPA’s  and  the  Guaranty’s  governing-law  provisions,  all of 
Huntington’s claims arise under or are governed by Minnesota law.  (IPA ¶ 11; Guaranty.) 
Lobby, Inc.,

477 U.S. 242, 255

 (1986).  However, to survive the motion, the non-moving 
party must demonstrate the existence of specific facts in the record that create a genuine 

issue for trial.  Krenik v. Cnty. of Le Sueur,

47 F.3d 953, 957

 (8th Cir. 1995).  In this case, 
though there is no genuine issue of fact concerning whether PABS breached the IPA, there 
remains a question of fact concerning when the breach occurred.           
I.   No Genuine Dispute of Fact Exists as to Occurrence of Breach         
Huntington argues that it is entitled to summary judgment on its breach-of-contract 
claims because the undisputed record evidence shows that PABS materially breached the 

IPA when it failed to make monthly installment payments.  (See generally Doc. No. 22 at 
7–11.)    Defendants  do  not  dispute  that  PABS  stopped  making  monthly  installment 
payments.  However, they argue that a condition precedent had not yet occurred, thereby 
relieving them of any obligation to make the payments required by the IPA.  The Court is 
not persuaded by Defendants’ argument.                                    

To prevail on its motion, Huntington must show that there is no genuine dispute of 
material fact on any element of its breach-of-contract claims, including the following: 
“(1) formation of a contract, (2) performance by plaintiff of any conditions precedent to 
his right to demand performance by the defendant, and (3) breach of the contract by 
defendant.”    Park  Nicollet  Clinic  v.  Hamann,

808 N.W.2d 828, 833

  (Minn.  2011).  

Defendants  contest the second  and  third  elements,  arguing  that  actual  receipt  of  the 
Equipment from the non-party vendor is a condition precedent to Huntington’s right to 
repayment.    However,  pursuant to  the  unambiguous  language  of  the  IPA,  the  Court 
concludes that actual receipt of the Equipment is not a condition precedent because the IPA 
does not clearly and unequivocally provide that PABS’s payment obligation is conditional. 
Under Minnesota law, “[a] condition precedent is a contract term that calls for the 

performance of some act or the happening of some event after the contract is entered into, 
and upon the performance or happening of which [the promisor]’s obligation is made to 
depend.”  Capistrant v. Lifetouch Nat’l Sch. Studios, Inc.,

916 N.W.2d 23, 27

 (Minn. 2018) 
(quotation omitted).  Minnesota law “reflects the general rule that conditions must be 
literally met or exactly fulfilled, or no liability can arise on the promise qualified by the 
condition.”

Id.

 at 27–28 (quotation omitted).  No special terms or particular code words 

are necessary to create a condition precedent; however, there must at least be some “clear 
and unequivocal” language that suggests that the agreement, or its terms, are conditioned 
upon some event.  Carl Bolander & Sons, Inc. v. United Stockyards Corp.,

215 N.W.2d 473, 476

 (Minn. 1974).  To “clear[ly] and  unequivocal[ly]”  signal an intent to bind 
themselves  to  a  condition  precedent,  contracting  parties  typically  use  terms  such  as 

“unless,” “until,” “contingent upon,” “subject to,” “provided that,” “as soon as,” and 
“after,” among others.  See, e.g., Comprehensive Care Corp. v. RehabCare Corp.,

98 F.3d 1063, 1066

 (8th Cir. 1996) (providing that phrases such as “if,” “provided that,” “when,” 
“after,”  “as  soon  as,”  and  “subject  to”  traditionally  indicate  conditions  precedent  as 
opposed to contractual promises (citing Standefer v. Thompson,

939 F.2d 161, 164

 (4th 

Cir. 1991)); see also Aslakson v. Home Sav. Ass’n,

416 N.W.2d 786, 789

 (Minn. App. 
1987) (concluding that the use of the term “contingent upon” in the contracted created a 
condition precedent); 451 Corp. v. Pension Sys. for Policemen & Firemen,

310 N.W.2d 922

,  923–24  (Minn.  1981)  (concluding  that  the  use  of  the  term  “subject  to”  in  the 
contracted created a condition precedent); Carl Bolander & Sons, Inc.,

215 N.W.2d at 476

 
(concluding that the use of the term “assuming that” in the contracted created a condition 

precedent).  Conditions precedent are “especially disfavored when the obligee has no 
control over the occurrence of the event in question.”  Mrozik Constr., Inc. v. Lovering 
Assocs., Inc.,

461 N.W.2d 49, 52

 (Minn. App. 1990) (citing Thos. J. Dyer Co. v. Bishop 
Int’l Eng’g Co.,

303 F.2d 655, 661

 (6th Cir. 1962)).                      
Here, the IPA sets forth PABS’s repayment obligation as follows:     

     In consideration of the financing provided by [Huntington],     
     [PABS]  shall  pay  to  [Huntington]  the  Financed  Amount,    
     together with interest thereon by paying each of the following  
     when  specified . . .  consecutive  monthly  installments  each 
     equal to the Payment Amount set forth above for the Number      
     of  Payments  set  forth  above  less  the  number  of  Advance 
     Payments  made  upon  delivery  of  this  IPA,  with  such      
     consecutive monthly Payments beginning on the date that is      
     one month after the Funding Date and then on the same day of    
     each calendar month thereafter.                                 
(IPA ¶ 2 (emphasis added).)  This language does not clearly and unequivocally indicate 
that Huntington and PABS meant for PABS’s repayment  obligation to hinge on the 
occurrence  of  any  event  except  Huntington’s  release  of  the  loan  financing.    See 
Restatement (Second) of Contracts § 2 (1981) (providing that “in consideration of” is not 
a contingency but rather a contractual promise); see also Mrozik,

461 N.W.2d at 52

(declining to find implied condition precedent such that construction contractor had no
obligation to pay subcontractor in event owner did not pay contractor because subcontract
had no clear and unequivocal risk-shifting language to that effect). Indeed, at the hearing
on this motion, Defendants’ counsel conceded that the IPA had neither an express nor
implied condition precedent to PABS’s obligation to make the monthly installment
payments. (See Tr. at 14:1–17:14.)

The Court further observes that actual delivery of the Equipment cannot be a
condition precedent to repayment because the IPA does not require actual delivery of the
Equipment; it only requires that PABS provide Huntington with “confirmation” of the
Equipment’s delivery, as follows:
Upon [PABS]’s acceptance and execution of this IPA, receipt
of any amounts due upon signing of this IPA, receipt of other
documentation required by [Huntington], confirmation that the
Software and Equipment has been accepted by [PABS] and no
material adverse change in [PABS]’s condition or business,
[Huntington] will pay the Financed Amount . . . directly to the
Software and Equipment vendor(s) on the terms and conditions
set forth herein.
(IPA ¶ 1 (emphasis added).) To the extent that provision of such confirmation can be
construed as a condition precedent, this condition was undisputedly satisfied: PABS
concedes it provided the required confirmation to Huntington, even though it had not
actually received the Equipment. (Doc. No. 23 ¶ 3; Doc. No. 1-1 at 12). Moreover,
PABS’s act of confirmation is one that triggers Huntington’s funding obligation and cannot
be reasonably understood as a condition of PABS’s repayment obligation.
On the factual record before the Court and under the terms of the IPA, there is no
unfulfilled condition precedent to PABS’s obligation to re-pay the loan amount. As a
result, PABS breached the IPA when it stopped making monthly installment payments, and
Davis breached the Guaranty when he did not cure the breach. (See IPA ¶ 7(a); Guaranty.)
II. Genuine Disputed Facts Remain Concerning Time of Breach and Damages
Huntington argues that, as a result of Defendants’ breach, it is entitled to damages
under the IPA’s terms in the amount of $302,499.78.5 (Doc. No. 23 ¶ 5; see also IPA ¶¶ 2,

8(a).) The Court agrees that Huntington is entitled to damages under the IPA as a result of
PABS’s breach. However, the Court disagrees with Huntington’s damages calculation to
the extent it relies on an August 8, 2022 breach date.
As noted above, the parties agree that PABS stopped making monthly installment
payments, but they disagree about when PABS’s non-payment first occurred. According

to Huntington, PABS made its last monthly installment payment in July 2022 and, thus,
the breach occurred and has been ongoing since August 8, 2022; according to PABS, its
last payment occurred in September 2022 and the breach first occurred and has been
ongoing since October 8, 2022. The record evidence thus conflicts regarding the date of
the last installment payment. This creates a genuine dispute of material fact that the Court

cannot resolve now because, on a motion for summary judgment, “the court does not weigh
the evidence, make credibility determinations, or attempt to discern the truth of any factual
issue.” Morris v. City of Chillicothe,

512 F.3d 1013, 1018

(8th Cir. 2008). Further, the
Court must make “all justifiable inferences” in favor of the non-movant. Anderson, 477

5 Huntington’s urged damages sum comprises the following: the value of 17 unpaid and
overdue installments (August 8, 2022–December 8, 2023) ($112,845.32); the present value
of 28 remaining future installments with 6.49% interest ($172,147.75); a 4% non-payment
penalty, calculated as 4% of the present value of the 28 future installments ($6,885.91);
and late fees calculated as 10% of the amount of a regular monthly installment multiplied
by 16 overdue payments ($10,620.80). (Doc. No. 23 ¶¶ 5–9; IPA ¶¶ 2, 8(a).)
U.S. at 255. The Court thus adjusts Huntington’s damages calculation consistent with an
October 8, 2022 breach date, which is consistent with the undisputed factual record before

the Court. This adjusted calculation, as set forth infra, entitles Huntington to $287,896.26
in damages.
III. Reasonableness of Huntington’s Requested Attorneys’ Fees and Costs
Finally, Huntington seeks an additional sum of $22,845.65 in attorneys’ fees and
$2,179 in costs incurred in this action through December 12, 2023. (Doc. No. 24 ¶¶ 8–13.)
Defendants do not challenge any of Huntington’s specific damages or attorneys’ fee

calculations. (See generally Doc. No. 26.)
Huntington bears the burden of establishing an accurate and reliable factual basis
for an award of attorneys’ fees, and the Court has wide discretion to make a fee award
determination. Philipp v. ANR Freight Sys., Inc.,

61 F.3d 669, 675

 (8th Cir. 1995).  The 
Court may rely on its experience and knowledge of prevailing market rates to determine 

whether the requested attorneys’ fees are reasonable.  Hanig v. Lee,

415 F.3d 822, 825

 (8th 
Cir. 2005).                                                               
Huntington’s attorneys aver that Huntington has incurred $22,845.65 in legal fees 
in this matter from the pleading stage through briefing on summary judgment.  (Doc. No. 
24 ¶¶ 9, 11.)  Huntington’s attorneys have not provided documentation to support these 

claimed fees but have offered to make them available to the Court, if desired.  (Id. ¶ 10.)  
The Court acknowledges that in similar matters—some with the same procedural posture—
judges in this District have issued similar attorneys’ fees awards to Huntington when 
Huntington was represented by the same attorneys.  See Huntington Nat’l Bank v. Restored 
Health Inc., No. 22-CV-599 (NEB/DLM),

2023 WL 8434475

, at *3 (D. Minn. Oct. 16, 
2023) (concluding, after review of attorney billing records, that attorneys’ fee award of 

$25,723.25 following summary judgment on breach of commercial loan agreement was 
reasonable and similar to award in similar matter); Huntington Nat’l Bank v. Green Sheet 
Mktg., LLC, No. 21-CV-2000 (WMW/DTS),

2022 WL 17127765

, at *6 (D. Minn. Nov. 
22, 2022) (awarding $25,955.25 in attorneys’ fees and costs based on similar dispute 
resolved  in  motion  for  default).    Further,  given  Defendants’  lack  of  response  to 
Huntington’s  claimed  fees,  the  Court  deems  Huntington’s  claimed  attorneys’  fees 

undisputed.  Fed. R. Civ. P. 56(e) (permitting Court to consider unopposed facts as 
undisputed).                                                              
The Court concludes that Huntington’s request for attorneys’ fees, to date, are 
reasonable.  However, a final attorneys’ fee award will be determined after final judgment.

ORDER

Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED THAT:
1. Huntington’s motion for summary judgment on Counts I and II is
GRANTED IN PART and DENIED IN PART.
a. Huntington’s motion for summary judgment is DENIED as to the period
August 8, 2022–October 7, 2022.
b. Huntington’s motion for summary judgment is GRANTED as to the
period starting October 8, 2022, and Huntington shall recover from
Defendants jointly and severally an award as follows:
i. $99,569.40 for the 15 overdue and unpaid monthly installments
from October 8, 2022 through December 8, 2023;
ii. $172,147.75 to reflect the present value of 28 remaining
installments at 6.49%;
iii. $6,885.91 as a 4% penalty in accordance with the penalty
provision in IPA ¶ 8;
iv. $9,293.20 in late fees; and
v. Reasonable attorneys’ fees and costs in an amount to be
determined after final judgment.
2. Counts III–VI of the Complaint (Doc. No. 1) are DISMISSED6
a. Counts III and IV shall be dismissed WITHOUT PREJUDICE.
b. Counts V and VI shall be dismissed WITH PREJUDICE.

Dated: June 4, 2024 /s/ Jeffrey M. Bryan
Judge Jeffrey M. Bryan
United States District Court

6 Huntington asks that, in the event the Court grants its motion for summary judgment on
Counts I and II, it wishes to “voluntarily dismiss[] the remaining counts of the Complaint,”
(i.e., Counts III–VI), under Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 22
at n.5.) The Court will dismiss the remaining counts as follows. First, Huntington’s
equitable quasi-contract claims for unjust enrichment and promissory estoppel (Counts V
and VI) are extinguished because a contract—the IPA—governs the parties’ relationship.
See Del Hayes & Sons, Inc. v. Mitchell,

230 N.W.2d 588, 593

 (Minn. 1975) (observing that 
promissory estoppel claim is precluded where express contract exists); Midwest Sports 
Mktg., Inc. v. Hillerich & Bradsby of Can., Ltd.,

552 N.W.2d 254, 268

 (Minn. App. 1996) 
(discussing nature of unjust enrichment as equitable claim that arises when party gains 
benefit unlawfully and observing that “equitable relief cannot be granted where the rights 
of the parties are governed by a valid contract.”).  Thus, Counts V and VI will be dismissed, 
with  prejudice.    Second,  as  to  the  claim-and-delivery  and  priority-of-interest  claims 
(Counts III and IV), Huntington’s counsel agreed at oral argument that dismissal under 
Federal  Rule  of  Civil  Procedure  41(a)(2)  would  be  appropriate.    Given  this 
acknowledgment and because Defendants would not be prejudiced by the dismissal, the 
Court dismisses Counts III and IV under Rule 41(a)(2), without prejudice.