Hopper v . Standard Ins. C o . 06-CV-010-SM 02/07/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wayne E . Hopper, Plaintiff

v. Civil N o . 06-cv-10-SM Opinion N o .

Standard Insurance Company; William Gallagher Associates; and Cubic Wafer, Inc., Defendants

O R D E R

Wayne Hopper brings this suit against Standard Insurance

Company (“Standard”), William Gallagher Associates (“WGA”), and

Cubic Wafer, Inc. (“Cubic Wafer” or “the Company”), formerly

known as Xanoptix, Inc., claiming that he relied, to his

detriment, upon incorrect representations made by the defendants

regarding Cubic Wafer’s group disability insurance plan. Hopper

also alleges that Cubic Wafer violated his rights under the

Americans with Disabilities Act (“ADA”).

Specifically, Hopper asserts claims of negligent

misrepresentation (Count I ) , breach of contract (Count I I ) ,

breach of the implied covenant of good faith and fair dealing

(Count I I I ) , deceptive practices in violation of N.H. Rev. Stat.

Ann. (“RSA”) § 358-A:2 (Count I V ) , breach of fiduciary duty

(Count V ) , respondeat superior (Count V I ) , negligent hiring, training, and supervision (Count V I I ) , and fraudulent

misrepresentation (Count V I I I ) against all three defendants.

Against Cubic Wafer alone, Hopper further alleges wrongful

termination in violation of 42 U . S . C . § 12101 et seq. (Count I X )

and R S A c h . 354-A (Count X ) , refusal to rehire (Count X I ) ,

failure to accommodate (Count X I I ) , and unlawful employment

discrimination under R S A c h . 354-A (Count X I I I ) .

Defendants Standard and W G A move to dismiss Counts I through

VIII. For the reasons set forth below, Standard’s motion is

granted, and WGA’s motion is granted in part and denied in part.

STANDARD OF REVIEW

F E D . R . C I V . P . 12(b)(6) permits a court to dismiss a claim

when the plaintiff “fail[s] to state a claim upon which relief

can be granted.” Under this rule, the court must conduct a

limited inquiry, focused not on “whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims.” Scheuer v . Rhodes, 416 U . S .

232, 236 (1974). When reviewing a motion to dismiss, the court

must accept all facts pleaded in the complaint as true and any

inferences must be drawn in the light most favorable to the

plaintiff. See, e.g., Citibank v . Grupo Cupey, Inc.,

9 , 31 (1st Cir. 2004) (quoting T A G / I C I B Servs., Inc. v . Pan Am.

2 Grain Co.,

7 2 , 175 (1st Cir. 2000)). The court may,

however, “reject claims that are made in the complaint if they

are ‘bald assertions’ or ‘unsupportable conclusions.’” United

States ex rel. Karvelas v . Melrose-Wakefield Hosp.,

2 0 ,

224 (1st Cir. 2004) (quoting Arruda v . Sears, Roebuck & Co.,

3 , 18 (1st Cir. 2002)). “A district court may grant a

12(b)(6) motion to dismiss for failure to state a claim upon

which relief can be granted only if ‘it clearly appears,

according to the facts alleged, that the plaintiff cannot recover

on any viable theory.’” Pomerleau v . W . Springfield Pub. Sch.,

(1st Cir. 2004) (quoting Correa-Martinez v .

Arrillaga-Belendez,

9 , 52 (1st Cir. 1990)).

BACKGROUND

The relevant facts, as alleged in the complaint (document

n o . 1 ) and accepted as true for purposes of this motion, are as

follows.

Hopper, a resident of Nashua, New Hampshire, suffers from

multiple sclerosis. He was diagnosed in 1995. On February 1 3 ,

2003, Hopper was offered a Materials Manager position at Cubic

Wafer’s facility in Merrimack, New Hampshire. At the time, WGA

served as Cubic Wafer’s insurance broker, acting as a liaison

between Standard Insurance Company (which underwrote the benefits

3 provided) and Cubic Wafer’s employees. WGA’s primary duties

involved assisting in identifying coverage limitations and

identifying and recommending new coverage options that might be

of interest to the Company. Through WGA, Cubic Wafer selected

Standard as the insurance carrier to provide underwritten life,

health, and disability benefits for Cubic Wafer’s employees.

Given his medical condition, maintaining continuous health

and disability insurance coverage was of critical importance to

Hopper. Accordingly, before giving up his in-place coverage and

accepting the position as Cubic Wafer’s Materials Manager, he

made a point of discussing insurance coverage issues with the

appropriate human resources personnel. After first speaking with

representatives from WGA, Cubic Wafer’s staff assured Hopper that

were he to accept the offered position, his health and disability

insurance coverage and benefits would continue uninterrupted, and

that he would not be subjected to a waiting period, because he

had been covered under “a current, similar disability policy, and

had held uninterrupted coverage for many years preceding his

diagnosis.” (Compl. ¶ 30.)

Hopper, relying upon Cubic Wafer’s express representations,

accepted the Materials Manager position and, believing that his

health and disability insurance coverage would transition

4 seamlessly, allowed his existing disability policy to lapse in

May of 2003. A little more than a year later, in August or

September of 2004, Hopper’s multiple sclerosis worsened. He

underwent intensive chemotherapy and other treatment that

necessitated a leave of absence. When discussing short term

disability leave with Cubic Wafer’s human resources department,

Hopper was again assured that, following short-term disability,

he was eligible for long-term disability benefits and that those

long-term benefits would become available automatically if Hopper

was still unable to work when his short-term disability insurance

benefits were exhausted.

Although Hopper initially planned to return to Cubic Wafer

following disability leave, he was also told by Cubic Wafer

personnel that “he would be able to retire on long term

disability and receive a ‘severance payment.’” (Compl. ¶ 52.)

Relying upon Cubic’s repeated assurances that his long term

disability benefits would become effective immediately upon

exhaustion of short term disability benefits, Hopper accepted a

severance package offered by Cubic Wafer and began short term

disability leave on September 1 7 , 2004.

In November of 2004, Standard and WGA notified Cubic Wafer

that the long-term disability policy providing plan benefits

5 included a 24 month waiting period provision, and that Standard

was unwilling to retroactively amend the policy to alter or

remove that requirement. Consequently, in December of 2004,

Hopper was denied long-term disability benefits on grounds that

he had not yet satisfied the 24 month waiting period prerequisite

for long-term benefits under the insurance policy that provided

those benefits.

Hopper discussed the issue with Cubic Wafer’s human

resources personnel, who again assured him that he was, in fact,

entitled to long-term disability benefits, and that the 24-month

waiting period provision upon which Standard relied in denying

benefits was inapplicable to him. As a result of those

discussions, and relying on the statements made by Cubic Wafer

regarding the disability insurance coverage available to him,

Hopper elected not to seek re-employment with Cubic Wafer, but

instead pursued an administrative appeal of Standard’s benefits

denial.

On February 1 6 , 2005, Hopper’s administrative appeal was

denied. The issue was later reviewed by an independent quality

assurance unit, which upheld the denial on February 2 5 , 2005.

On April 1 1 , 2005, Hopper filed a charge of discrimination with

both the New Hampshire Human Rights Commission and the federal

6 Equal Employment Opportunity Commission (“EEOC”), alleging that

Cubic Wafer had encouraged him to leave the company and “retire”

on his long-term disability benefits due to his medical

condition. The EEOC issued a Notice of Right to Sue on October

2 6 , 2005, and this suit followed.

Count I asserts that defendants negligently misrepresented

the scope of insurance coverage available to Hopper and that

those misrepresentations were material to his decision to accept

employment with Cubic Wafer. Count II alleges breach of

contract. Count III asserts that the defendants breached the

implied covenant of good faith and fair dealing implicit in the

employment and insurance contracts. Count IV alleges a violation

of RSA ch. 358-A:2 for making false and misleading claims

regarding insurance coverage and the availability of certain

benefits. Count V asserts that the defendants breached fiduciary

duties owed to Hopper, and Count VI asserts a claim under the

doctrine of respondeat superior, alleging that Cubic Wafer’s and

WGA’s employees were acting as agents of Standard when they made

the alleged misrepresentations. Count VII alleges that

defendants negligently hired, trained, and supervised their

employees, and Count VIII asserts that defendants made fraudulent

misrepresentations upon which Hopper reasonably relied in

altering his position to his detriment.

7 Counts IX through XIII relate to Cubic Wafer only. Count IX

asserts a claim under the Americans with Disabilities Act,

et seq. (“ADA”), for wrongful termination, while

Count X is brought under RSA ch. 354-A alleging the same conduct.

Count XI alleges violations of both the ADA and RSA ch. 354-A for

refusal to rehire based upon Hopper’s disability. Count XII is

an ADA claim for failure to reasonably accommodate Hopper’s

disability, and Count XIII is for general employment

discrimination under RSA ch. 354-A.

DISCUSSION

Standard moves to dismiss all of the claims against it on

grounds that they are preempted by the Employee Retirement Income

Security Act (“ERISA”). 1

Generally, ERISA preempts all state laws and state-law

claims that “relate to” employee welfare benefit plans. See

(a). The “relate to” standard reaches and preempts

“(1) state laws that ‘mandate[] employee benefit structures or

their administration,’ (2) state laws that ‘bind plan

administrators to [a] particular choice,’ and (3) state law

causes of action that provide ‘alternative enforcement

1 Hopper does not dispute that the plan at issue is an employee welfare benefit plan regulated by ERISA.

8 mechanisms’ to ERISA’s enforcement regime.” Hampers v . W.R.

Grace & Co., Inc.,

4 , 51 (1st Cir. 2000) (quoting N.Y.

State Conference of Blue Cross & Blue Shield Plans v . Travelers

Ins. Co.,

(1995)). In determining whether a

particular state cause of action constitutes an alternative

enforcement mechanism, “we must ‘look beyond the face of the

complaint’ and determine the real nature of the claim ‘regardless

of plaintiff’s . . . characterization.’” Hampers,

(quoting Danca v . Private Health Care Sys., Inc.,

, 5

(1st Cir. 1999).

I. Negligent Misrepresentation (Count I ) and Fraudulent Misrepresentation (Count VIII).

Count I of Hopper’s complaint alleges that Standard, along

with its alleged agents, WGA and Cubic Wafer, negligently made

erroneous representations and promises regarding the scope of

disability insurance coverage, upon which Hopper relied in

leaving his prior employment to accept the Materials Manager

position at Cubic Wafer. Count VIII is a fraudulent

misrepresentation claim based upon the same conduct.

Invoking ERISA preemption, Standard relies principally on

two controlling precedents, Vartanian v . Monsanto Co.,

(1st Cir. 1994), and Carlo v . Reed Rolled Thread Die Co., 49

(1st Cir. 1995). In Vartanian, the employee-plaintiff

claimed that he retired in reliance upon misleading statements

suggesting that his employer had no intention of offering an

“enhanced severance program.”

. Based upon that

information, plaintiff opted to retire, only to find that his

employer did subsequently offer a more desirable severance

program.

The district court’s dismissal of plaintiff’s

misrepresentation claim was affirmed, the court of appeals

finding that “the existence of the [enhanced plan] is inseparably

connected to any determination of liability under state common

law of misrepresentation.”

.

Similarly in Carlo, the plaintiffs, Carlo and his wife,

alleged that the employer-defendant made misleading statements

about the scope of his retirement benefits. 49 F.3d at 793 n . 5 .

The court held that the Carlos’ “claims [were] preempted because

they have a ‘connection with or reference to’” the retirement

plan, further explaining that, just like the plaintiff in

Vartanian, the Carlos “sought damages for an employer’s alleged

misrepresentation concerning the scope or existence of early

retirement benefits” which required the court to review the ERISA

plan. Id. at 794-95.

10 Hopper attempts to distinguish both Vartanian and Carlo on

grounds that he does not seek benefits he would have received

under the ERISA plan, but instead, seeks only the wages and

benefits he lost as a result of accepting a severance package in

lieu of requesting an accommodation for his disability, which

would have allowed him to continue working.2 But Hopper’s

complaint discloses that he seeks compensation (Count I ) for “all

losses sustained as a result of the denial of his long-term

disability.” (Compl. p p . 14 (“Wherefore” Clause).) Similarly, in

Count VIII, he alleges that Standard failed to properly “advise

him of his rights and remedies under the contract and claims

process” (Compl. ¶ 120.) Such references to the denial of plan

benefits and Hopper’s contractual rights lead inescapably to the

conclusion that adjudication of his misrepresentation claims

requires review of the ERISA-governed plan.

2 Hopper’s notion of “retirement” on long term disability benefits is somewhat off the mark. A typical disability insurance plan provides benefits only until the beneficiary is able to return to work. See, e.g., Matias-Correa v . Pfizer, Inc.,

, 9 (1st Cir. 2003) (long term disability benefits plan provides benefits for those who are “totally disabled” and “unable to perform the basic duties” of one’s occupation). Hopper suggests, however, that had Cubic Wafer reasonably accommodated his multiple sclerosis condition, he could, and would have returned to work, (Compl. ¶ 5 6 ) , thereby rendering him ineligible for the very long-term benefits he claims.

11 The court in Carlo rejected the same argument Hopper makes

here. There plaintiffs also asserted that their

misrepresentation claims “do not relate to the [retirement plan]

because they are seeking damages for a tort committed by [the

employer] within the course of [Carlo’s] employ.” Carlo, 49 F.3d

at 794 n . 3 . The court found the “distinction to be meaningless”

because, “‘ERISA’s preemption of state law claims depends on the

conduct to which such law is applied, not on the form or label of

the law.’” Id. (quoting Cefalu v . B.F. Goodrich Co.,

(5th Cir. 1989) (internal quotation marks omitted)).

As in Carlo, although Hopper does not seek to extend or enlarge

the coverage afforded him under the disability benefit

(insurance) plan, “any money [he] obtained from [his] suit would

be functionally a benefit to which the terms of the plan did not

entitle [him].”

(quoting Pohl v . Nat’l Benefits Consultants,

Inc.,

(7th Cir. 1992)). “This type of end run

is regularly rebuffed.”

(quoting Phol,

2 8 ) .

Hopper argues, alternatively, that neither Vartanian nor

Carlo remain viable in view of the Supreme Court’s decision in

Travelers, which, he asserts, limited the expansive nature of the

ERISA preemption clause as applied in Vartanian and Carlo. See

Carlo, 49 F.3d at 794 (describing the preemption language as

“deliberately expansive” (citations omitted)). But, as the Court

12 of Appeals explained, the Travelers court “identified three

categories of state laws that ‘relate to’ ERISA plans in such a

way that preemption of those laws,” Hampers,

(citing Travelers,

(citation omitted)), remains

true to ERISA’s original purpose of ensuring “that plans and plan

sponsors would be subject to a uniform body of benefits law.”

Hampers,

(citing Travelers,

).

Thus, while Travelers serves to focus the ERISA preemption

inquiry, by ensuring that courts remain cognizant of the original

goals and objectives of the preemption clause, it did not

overrule or otherwise call into question prior preemption cases.

The plain language of Hopper’s complaint makes clear that the

misrepresentation claims against Standard “relate to” the ERISA

plan, since adjudication of those claims would necessarily

require the court to compare the representations made to Hopper

with the coverage provided under the plan.

Under Travelers, Hopper’s misrepresentation claims, to the

extent they are asserted against Standard, fall squarely into the

third category. Granting the relief Hopper appears to seek would

effectively create an alternative benefit enforcement mechanism

beyond that which ERISA already provides. Accordingly, Counts I

13 and VIII are preempted, and defendant’s motion to dismiss those

counts is granted.

Hopper’s misrepresentation claims against WGA, however, are

different. Unlike Standard, which functions as an ERISA entity,

see Hampers,

(citing Stetson v . PFL Ins. Co.,

8 , 33 (D. M e . 1998)) (explaining that the “primary

ERISA entities are the employer, the plan, the plan fiduciaries,

and the beneficiaries of the plan”), WGA is strictly an insurance

broker, engaged in sales and marketing functions.

WGA had no direct control over Standard’s insurance policy

or the benefits plan. WGA did not administer the plan, and did

not determine participant eligibility for benefits or consider

appeals of benefit denial. Put differently, Hopper’s claims

against WGA are limited to WGA’s “role as a seller of insurance,

not as an administrator of an employee benefits plan.”

Woodworker’s Supply, Inc. v . Principal Mut. Life Ins. Co.,

(10th Cir. 1999).

This result is consistent with the underlying goal of ERISA

“to protect the interests of employees and other beneficiaries of

employee benefit plans.” Morstein v . Nat’l Ins. Servs., Inc.,

(11th Cir. 1996). “If ERISA preempts a

14 beneficiary’s potential cause of action for misrepresentation,

employees, beneficiaries, and employers choosing among various

plans will no longer be able to rely on the representations of

the insurance agent regarding the terms of the plan.”

As a

result “[t]hese employees, whom Congress sought to protect, will

find themselves unable to make informed choices regarding

available benefit plans where state law places the duty on agents

to deal honestly with applicants.”

.

Accordingly, Hopper’s misrepresentation claims against WGA

are not preempted by ERISA. WGA’s motion to dismiss Counts I and

VIII is denied.

II. Breach of Contract (Count II) and Breach of the Implied Covenant of Good Faith (Count I I I ) .

In Count II of his complaint, Hopper alleges that Standard

committed an “egregious and wanton bad faith breach of the policy

provisions” (Compl. ¶ 8 1 ) , and that the “actions of the

[d]efendants were grossly negligent and/or a willful and

malicious effort to deny [Hopper] his rights under . . . the

contract of insurance.” (Compl. ¶ 82.) Moreover, Hopper asserts

that the “blatant disregard of the contractual policy language

constitutes an act of . . . wanton and malicious bad faith,”

(Compl. ¶ 8 3 ) , and claims that the defendants are “obligated to

15 provide either the benefits promised, or the financial equivalent

thereof.” (Compl. ¶ 85.)

Similarly, in Count I I I , Hopper alleges that the defendants

“refused to provide [Hopper’s] contractual benefits of long term

disability insurance,” (Compl. ¶ 9 0 ) , and asserts that “he is

entitled to contractual benefits of his policies of insurance.”

(Compl. p p . 17-18 (“Wherefore” Clause)).

The Court of Appeals for this circuit has “consistently held

that a cause of action ‘relates to’ an ERISA plan when a court

must evaluate or interpret the terms of the ERISA-regulated plan

to determine liability under the state law cause of action.”

Hampers,

(citations omitted). Further, “ERISA

preempts state law causes of action for damages where the damages

must be calculated using the terms of an ERISA plan.” Hampers,

(citing Carlo, 49 F.3d at 7 9 4 ) .

In his complaint, Hopper explicitly invokes the insurance

plan and the benefits to which he is allegedly entitled under

that plan as well as the insurance contract that underwrites the

plan benefits. It is therefore plain that any analysis of Counts

II and III would necessarily require the court to evaluate and

interpret the ERISA plan’s terms to determine benefit eligibility

16 (or “insurance coverage”). Evaluating eligibility requirements

of the benefit plan in the context of state breach of contract

and breach of the implied covenant of good faith and fair dealing

claims would effectively but impermissibly provide an alternative

enforcement mechanism to ERISA’s benefit enforcement regime.

Counts II and III are therefore preempted by ERISA and Standard’s

motion to dismiss those counts is granted.

Hopper’s breach of contract and breach of the implied

covenant of good faith and fair dealing claims against WGA are

similarly dismissed, but for a different reason. There is no

suggestion that Hopper ever contracted with WGA. The insurance

policy underwriting Cubic Wafer’s benefits plan was issued to

Cubic Wafer by Standard. Hopper was not a party to any contract

between Cubic Wafer and WGA or between WGA and Standard. While

Hopper may have stood to benefit from those various contractual

relationships, he was not a party to any of them, and he was

entitled to benefits only as an ERISA plan beneficiary.

Accordingly, as against WGA, Counts II and III fail to state

viable claims. WGA’s motion to dismiss is granted.

III. Deceptive Practices - RSA 358-A:2 (Count I V ) .

Count IV of Hopper’s complaint alleges that Standard made

false and misleading claims regarding both its policies and

17 claims practices in violation of New Hampshire’s consumer

protection statute, RSA 358-A:2. That statute generally

prohibits “any unfair or deceptive act or practice in the conduct

of any trade or commerce within this state.” RSA 358-A:2.

This court has previously held that RSA 358-A:2 does not

fall under the provisions of the ERISA savings clause, which

exempts from preemption laws that regulate insurance. Camire v .

Aetna Life Ins. Co.,

(D.N.H. 1993) (noting

that RSA 354-A:2 does not transfer or spread policy risk, affect

an integral part of the insurer-insured relationship, does not

regulate terms of the insurance contract itself, nor is its

applicability limited to insurance entities). Accordingly, the

claim made under the consumer protection statute is preempted to

the extent that it relates to an ERISA benefits plan.

As with Hopper’s other claims, determining whether Standard

made false and misleading statements about its insurance policies

and claims practices would require the court to review the

benefit plan to compare the relevant provisions of the plan to

the representations and promises allegedly made to Hopper.

Because ERISA preempts laws where “a plaintiff, in order to

prevail, must plead, and the court must find, that an ERISA plan

exists,” and because “[t]here is simply no cause of action if

18 there is no plan,” Vartanian,

0 0 , Hopper’s deceptive

practices claim under RSA 358-A:2 is preempted by ERISA and

Standard’s motion to dismiss that count is granted.

That claim is dismissed as to WGA as well, though for a

different reason. RSA 358-A:3 specifically states that RSA ch.

358-A does not apply to “[t]rade or commerce that is subject to

the jurisdiction of . . . the insurance commissioner . . .” See

also Bell v . Liberty Mut. Ins. Co.,

9 0 , 194 (2001)

( “ . . . the insurance trade is exempt from the Consumer

Protection Act pursuant to RSA § 358-A:3, I ” ) . Because WGA i s ,

as Hopper notes in his complaint, an insurance brokerage firm,

(Compl. ¶ 1 3 ) , its conduct falls outside the scope of RSA ch.

358-A. Accordingly, as against WGA, Count IV fails to state a

viable claim. WGA’s motion to dismiss Count IV is granted.

IV. Breach of Fiduciary Duty (Count V ) , Respondeat Superior (Count V I ) , and Negligent Hiring, Training, and Supervision (Count V I I ) .

Count V of Hopper’s complaint alleges that Standard breached

its fiduciary duty to Hopper by failing to competently administer

the benefits plan and, through its negligent statements regarding

the scope of benefits available, improperly induced Hopper into

accepting a position with Cubic Wafer. Count VI alleges that

employees of WGA and Cubic Wafer, as agents of Standard, were

19 improperly trained with regard to the scope of the ERISA plan

and, as a result, misrepresented material terms of the insurance

coverage benefits available to Hopper under the plan. Finally,

Count VII alleges that Standard, through its agents Cubic Wafer

and WGA, improperly trained and supervised its employees by

knowingly allowing them to make false and misleading

representations about the scope of coverage available to Hopper.

These claims are all preempted for the same reasons set

forth above. To determine whether Standard’s alleged agents were

improperly trained regarding the insurance coverage available

under the benefit plan, and whether Standard breached its

fiduciary duty with respect to its obligations under the benefit

plan, all necessarily require the court to review the ERISA plan

at issue. Such review of ERISA plans outside the ambit of the

dispute resolution scheme established by ERISA is precisely what

the statute aims to preclude. See Egelhoff v . Egelhoff,

(explaining that one of the principal goals of ERISA is

to establish a uniform administrative scheme). Accordingly,

Standard’s motion is granted, and Counts V , V I , and VIII of

plaintiff’s complaint are dismissed.

As against WGA, however, Counts V , V I , and VIII remain

viable for the same reasons that Hopper’s misrepresentation

20 claims are not preempted. WGA is not an ERISA entity. Issues

regarding how it trains and supervises its employees are not

sufficiently related to the ERISA plan to warrant preemption.

Moreover, because WGA is not an ERISA entity, any fiduciary duty

that WGA allegedly owes to Hopper arises, if at all,

independently of the ERISA plan and, therefore, would not be

sufficiently “related” to justify preemption. It is true that if

Hopper were to prevail on these counts, the subsequent damages

inquiry would necessarily require a review of the plan. Courts

have recognized, however, that immunizing insurance brokers from

improper conduct in the sales process would not serve Congress’s

purpose for ERISA because “ . . . employees, beneficiaries, and

employers choosing among various plans will no longer be able to

rely on the representations of the insurance agent regarding the

terms of the plan.” Morstein,

. Accordingly,

WGA’s motion to dismiss Counts V , V I , and VIII is denied.

CONCLUSION

For the foregoing reasons, Defendant Standard Insurance

Company’s Motion to Dismiss (document n o . 8 ) is granted as to all

claims asserted against i t . Defendant William Gallagher

Associates’s Motion to Dismiss (document n o . 35) is granted in

part and denied in part. Specifically, Counts I I , I I I , and IV,

as against William Gallagher Associates are dismissed.

21 SO ORDERED.

Steven J./McAuliffe ^hief Judge

February 7 , 2007

cc: Edwinna C . Vanderzanden, Esq. Byrne J. Decker, Esq. William D. Pandolph, Esq. Charles P. Bauer, Esq. Stephen A . Duggan, Esq.

22