UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Derry & Webster, LLC

v. Civil No. 14-cv-211-PB Opinion No.

Bayview Loan Servicing, LLC

MEMORANDUM AND ORDER

Derry & Webster, LLC has sued Bayview Loan Servicing, LLC

to recover damages it suffered as a result of a foreclosure

sale. Bayview has responded with a motion to dismiss for

failure to state a claim. For the reasons that follow, I grant

Bayview’s motion in part and deny it in part.

I. BACKGROUND1

In September 2007, Derry & Webster granted two mortgages on 1 I draw the background facts from Derry & Webster’s amended complaint, taking its factual allegations as true and drawing all reasonable inferences in the light most favorable to Derry & Webster. Where necessary, I also draw facts from public records and from certain documents that Derry & Webster attached to its original complaint but not to its amended complaint, even though it expressly referred to them in the amended complaint. See Watterson v. Page,

(1st Cir. 1993) (in deciding a motion to dismiss, a court may consider “official public records” and “documents sufficiently referred to in the complaint”). property it owned in Hudson, New Hampshire to Silver Hill

Financial, LLC as security for loans totaling $1,062,000.

Silver Hill Financial later assigned the loans and mortgages to

Bayview. Derry & Webster defaulted on the loans, and Bayview

scheduled a foreclosure sale for October 3, 2013. Derry &

Webster responded by filing for bankruptcy protection, causing

the scheduled foreclosure sale to be cancelled.

In late 2013, Derry & Webster began to discuss a possible

short sale with Bayview. At an unspecified point prior to

November 6, 2013, Bayview informed Derry & Webster that it would

accept a short sale for $600,000. On November 6, 2013, Derry &

Webster entered into an agreement with Artivan Sookisian, a

third-party buyer, to sell the property to Sookisian for

$600,000. Doc. No. 1-1 at 7-11. On December 27, 2013, Bayview

sent a “discount payoff letter” to Derry & Webster approving a

short sale that would yield $600,000 to Bayview and, in turn,

release Derry & Webster and its principals from further

obligations under the original loans. The parties scheduled a

closing to take place on February 26, 2014, but the closing did

not ultimately take place.

On March 3, 2014, Bayview, through its attorney, William

Amann, petitioned the bankruptcy court for relief from the 2 automatic stay as a secured creditor of Derry & Webster. See

Br. Doc. No. 52.2 In its motion, Bayview stated that “[Derry &

Webster] has no means to reinstate the loan. Instead, [Derry &

Webster] has proposed a short-sale outside of bankruptcy, which

[Bayview] is willing to accept, however, relief from the

automatic stay must be obtained first.”

.

At around this time, Bayview informed Derry & Webster that

it would accept a short sale of $568,000 if Derry & Webster

assented to its motion to lift the automatic stay. On March 11,

2014, in response to Bayview’s representations, Derry & Webster

assented to Bayview’s motion. See Br. Doc. No. 54. The

bankruptcy court entered an order granting the motion on March

19 and stayed the order until April 2. See Br. Doc. No. 55.

Also on March 19, Amann sent an email to Allen and Morgan

Hollis, an attorney representing Sookisian’s lender. In that

email, Amann wrote that “as long as [Bayview] nets $568,000

they’re good.” Doc. No. 4-2 at 29. He also requested further

documents from Hollis that were needed to complete the short

sale. See

By April 2, 2014, both Derry & Webster and

2 The case number of the related bankruptcy proceeding in the U.S. Bankruptcy Court for this District is 13-12432-BAH. In this Memorandum and Order, “Br. Doc. No.” citations refer to docket numbers for that case. 3 Sookisian had done everything required to complete the short

sale. They awaited only a letter from Bayview confirming its

approval, which Amann had previously indicated they could expect

to receive no later than April 1.

The bankruptcy court’s order lifting the automatic stay

became effective on April 2, 2014. Br. Doc. No. 55. On April

3, Amann informed Derry & Webster that Bayview would not accept

a short sale unless it yielded $600,000. Although Derry &

Webster’s representatives believed that Bayview was obligated to

accept a $568,000 short sale, they continued to negotiate with

Bayview in an effort to conclude the transaction.

On April 14, 2014, Bayview served notice on Derry & Webster

that it had scheduled a foreclosure sale of the Hudson property

for May 13, 2014. On May 7, 2014, Derry & Webster petitioned

the Hillsborough County Superior Court to enjoin the

foreclosure. Doc. No. 4-1 at 4. The court granted a temporary

injunction that day and scheduled a hearing on the merits to

take place ten days later, on May 17, 2014.

. On May

13, 2014, however, Bayview removed the case to this Court. Doc.

No. 1. Because Bayview did not seek additional interim relief,

the state court temporary injunction expired on May 17, 2014.

Bayview ultimately conducted a foreclosure sale of the Hudson 4 property on June 12, 2014.

On July 11, 2014, Derry & Webster filed an amended

complaint seeking damages and an order declaring that it has

satisfied its legal obligations to Bayview. See Doc. No. 12.

II. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient to

“state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). A claim is

facially plausible if it pleads “factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.

In deciding a motion to

dismiss, I employ a two-step approach. See Ocasio–Hernández v.

Fortuño–Burset,

(1st Cir. 2011). First, I screen

the complaint for statements that “merely offer legal

conclusions couched as fact or threadbare recitals of the

elements of a cause of action.”

(citations, internal

quotation marks, and alterations omitted). A claim consisting

of little more than “allegations that merely parrot the elements

of the cause of action” may be dismissed.

Second, I credit 5 as true all non-conclusory factual allegations and the

reasonable inferences drawn from those allegations, and then

determine if the claim is plausible.

The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Twombly,

. The “make-or-break

standard” is that those allegations and inferences, taken as

true, “must state a plausible, not a merely conceivable, case

for relief.” Sepúlveda–Villarini v. Dep’t of Educ.,

(1st Cir. 2010); see Twombly,

(“Factual

allegations must be enough to raise a right to relief above the

speculative level . . . .”).

III. DISCUSSION

Derry & Webster’s amended complaint presents seven claims:

(i) breach of contract; (ii) breach of the implied covenant of

good faith and fair dealing; (iii) breach of the New Hampshire

Consumer Protection Act; (iv) intentional misrepresentation; (v)

negligent misrepresentation; (vi) promissory estoppel; and (vii)

equitable estoppel.3 See Doc. No. 12. I address Bayview’s

3 Without addressing the choice-of-law issue, “[t]he parties briefed and argued the case on the apparent understanding that 6 challenge to each claim in turn.

A. Count 1: Breach of Contract

Derry & Webster alleges that Bayview offered to accept a

short sale of $568,000 in exchange for Derry & Webster’s assent

to its motion to lift the automatic stay. See Doc. No. 12 at 6.

It claims that it then accepted Bayview’s offer and fulfilled

its own obligations under the ensuing contract by assenting to

Bayview’s motion. See

It asserts that Bayview then

breached the contract by refusing to accept the $568,000 short

sale and ultimately foreclosing on the Hudson property. See

Bayview responds by claiming that a contract was not formed

because Bayview never accepted Derry & Webster’s offer and, in

any event, Derry & Webster’s assent to Bayview’s motion did not

provide adequate consideration for the alleged contract. See

Doc. No. 18-1 at 4-5.

Bayview’s first argument is a nonstarter because it is

based on a misreading of the amended complaint, which alleges

that Bayview, not Derry & Webster, made the initial offer to

accept a $568,000 short sale. Because the complaint alleges

[New Hampshire] law governs” Derry & Webster’s claims. See In re Newport Plaza Assocs.,

(1st Cir. 1993). Therefore, I need not reach the choice-of-law question and instead proceed on the parties’ assumption that New Hampshire law controls here. See

7 that Derry & Webster accepted Bayview’s offer, Bayview’s

argument that it never accepted Derry & Webster’s offer is

immaterial to the validity of the contract claim.4

Bayview’s alternative argument that the alleged contract

fails for want of consideration is also unavailing.

“Consideration is present if there is either a benefit to the

promisor or a detriment to the promisee.” Chisholm v. Ultima

Nashua Indus. Corp.,

(2003). Here, it is

clear, and the parties do not dispute, that Derry & Webster had

a legal right to resist Bayview’s motion to lift the automatic

stay.5 Whether or not Derry & Webster would have ultimately

4 Bayview points to Derry & Webster’s allegation in its complaint that “the only remaining item necessary to close the ‘short- sale’ transaction was a letter from the Defendant confirming the approval for the ‘short-sale.’” Doc. No. 18-1 at 4. In context, however, the complaint alleges that a letter was needed from Bayview to complete the short sale after the alleged contract had been formed. See Doc. No. 12 at 4. Under this sequence of alleged facts, Bayview’s failure to provide the letter would evince a breach of contract, not an absence of offer and acceptance. 5

(d) prescribes the ability of parties in interest to seek relief from the automatic stay under certain circumstances. See

(d). Rule 4001(a) of the Federal Rules of Bankruptcy Procedure governs motions brought under § 362(d) to lift the automatic stay and provides that such motions must “be made in accordance with Rule 9014” of the Rules. Fed. R. Bankr. P. 4001(a). Rule 9014, in turn, requires that whenever relief is requested by motion in any contested manner, “reasonable notice and opportunity for hearing shall be 8 prevailed, its agreement to abandon that right benefited Bayview

by, if nothing else, relieving it of the need to further

litigate the issue. Moreover, by surrendering its right to

resist, Derry & Webster forfeited any chance, however remote, of

keeping the automatic stay in place and thereby precluding or

delaying foreclosure of the property. Derry & Webster’s assent

to Bayview’s motion, therefore, provided adequate consideration

for Bayview’s alleged promise. This result should come as no

surprise because New Hampshire law follows the ordinary and

long-established principle that forbearance of a legal right or

claim provides consideration sufficient to form a contract. See

Latulippe v. New England Inv. Co.,

,

(N.H. 1913); 3 Williston and Lord, Williston on Contracts § 7:47

(4th ed.).

This general rule notwithstanding, Bayview argues that

forbearance of a legal right provides consideration only if the

surrendered claim is meritorious. New Hampshire law, however,

has squarely rejected Bayview’s argument. See Carter v. Provo,

,

(N.H. 1935) (“[T]he fact that [a

claim] may have deserved disallowance or probably would not have

afforded the party against whom relief is sought.” Fed. R. Bankr. P. 9014(a). 9 been sustained does not show that its forbearance constituted an

insufficient consideration.”); Flannagan v. Kilcome,

(1878) (“A settlement of a controversy is valid, not

because it is the settlement of a valid claim, but because it is

the settlement of a controversy.”); Pitkin v. Noyes,

(1869) (“[T]he compromise of doubtful and conflicting

claims is a good and sufficient consideration to uphold an

agreement.”); see also Restatement (Second) of Contracts § 74

(1981). Thus, Bayview cannot attack the adequacy of the

consideration that Derry & Webster claims to have provided

simply by arguing that Derry & Webster would not have prevailed

had it opposed Bayview’s motion.6 Accordingly, I reject

Bayview’s motion to dismiss Derry & Webster’s breach of contract

claim. 6 It is true that “the surrender or discharge of a claim which is utterly without foundation and known to be so, is not a good consideration for a promise.” Pitkin,

(emphasis added); see also Restatement (Second) of Contracts § 74 (adopting same two-pronged approach). Bayview, however, has argued only that it would have prevailed on its motion to lift the automatic stay regardless of Derry & Webster’s decision to assent. It is doubtful whether that argument, even if true, suffices to show that Derry & Webster’s claim was “utterly without foundation.” See Pitkin,

. In any event, Bayview would also have to show that Derry & Webster knew that its claim was “utterly without foundation” to defeat the consideration that Derry & Webster claims to have furnished. See

Bayview, however, has neither identified this standard nor made an argument that addresses it. 10 B. Count 2: Breach of the Implied Covenant of Good Faith and Fair Dealing

Derry & Webster’s second count alleges that Bayview

breached the implied covenant of good faith and fair dealing.

See Doc. No. 12 at 6. In New Hampshire, the implied covenant of

good faith and fair dealing comprises three separate categories

of obligation, each of which relates to a distinct type of

contract-related conduct: contract formation; the termination of

at-will employment; and the exercise of discretion in contract

performance. Livingston v. 18 Mile Point Drive, Ltd.,

(2009). Derry & Webster claims that Bayview breached

both the formation and discretion prongs of the good-faith

covenant. See Doc. No. 12 at 7.

Derry & Webster first alleges that Bayview misrepresented a

material fact in connection with the formation of the contract

by offering to accept a short sale of $568,000 when it was in

fact unwilling to do so. See id. at 7. That misrepresentation,

Derry & Webster further alleges, induced it to change its

position by assenting to Bayview’s motion. See id. As pled,

these facts are sufficient to support a good faith and fair

dealing claim. See Bursey v. Clement,

(1978) (misrepresentation of a material fact that induces a

11 change in position creates liability for breach of the duty of

good-faith dealing). In any event, Bayview does not even

address the duty of good faith in contract formation in its

motion. See Doc. No. 18-1 at 6-7. Thus, I conclude that Derry

& Webster has stated a claim for breach of the good-faith

covenant under the formation prong of that doctrine.

Derry & Webster also alleges that Bayview breached its duty

of good faith by “exercise[ing] its discretion to commence

foreclosure proceedings” instead of completing the $568,000

short sale transaction. See Doc. No. 12 at 8. Bayview argues

that this claim fails because the contract underlying Derry &

Webster’s claim did not extend any discretion to Bayview in

performing its obligations. See Doc. No. 18-1 at 7.

It is true, as Derry & Webster observes, that a grant of

discretion in performance need not be explicit to support a

good faith and fair dealing claim. See Great Lakes Aircraft Co.

v. City of Claremont,

(1992). Thus, the fact

that the contract alleged by the complaint makes no express

grant of discretion to Bayview is not dispositive of Derry &

Webster’s claim. Nevertheless, a claim that a defendant is

liable for failing to exercise contractual discretion in good

faith must still identify a specific grant of discretion 12 “sufficient to deprive another party of a substantial proportion

of the agreement’s value” that the contract extends, explicitly

or implicitly, to the breaching party. See Centronics Corp. v.

Genicom Corp.,

(1989). Merely alleging a

breach of contract without also identifying a specific grant of

discretion that the breaching party abused, however, does not

satisfy this requirement. See Balsamo v. Univ. Sys. of N.H.,

; Alt. Sys. Concepts, Inc. v. Synopsys, Inc.,

; Lowry v. Cabletron Sys.,

(D.N.H. 1997). Otherwise, every breach of contract claim would

double as a claim for breach of the duty of good-faith dealing,

eliminating the boundary between the two doctrines. See Hall v.

EarthLink Network, Inc.,

(2d Cir. 2005).

Here, Derry & Webster argues only that Bayview improperly

exercised its contractual discretion by commencing foreclosure

proceedings. See Doc. No. 20-1 at 8. It neither identifies a

specific grant of discretion that the alleged contract extends

to Bayview nor explains how Bayview abused that discretion

beyond simply failing to perform its express duty under the

contract. Thus, Derry & Webster alleges nothing more than an

ordinary breach of contract that cannot support a separate good

faith and fair dealing claim. 13 C. Count 3: New Hampshire Consumer Protection Act

Derry & Webster’s third count alleges that Bayview violated

the New Hampshire Consumer Protection Act (the “CPA”) by

knowingly misrepresenting its willingness to accept a $568,000

short sale, thereby inducing Derry & Webster to assent to its

motion. See Doc. No. 12 at 9-10. Bayview responds by arguing

that the conduct alleged by Derry & Webster is not actionable

under the CPA. See Doc. No. 18-1 at 8.

The CPA broadly proscribes “any unfair or deceptive act or

practice in the conduct of any trade or commerce within this

state” and enumerates a non-exhaustive list of such “deceptive

act[s] or practice[s].”

-A:2. To

determine whether the statute prohibits a non-enumerated act or

practice, courts apply what the New Hampshire Supreme Court has

called the “rascality test.” Axenics, Inc. v. Turner Constr.

Co.,

(2013). To be actionable under the

rascality test, the challenged conduct “must attain a level of

rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce.”

(internal quotation omitted).

An ordinary breach of contract does not generally meet the

rascality test and, therefore, does not usually impose liability 14 under the CPA. George v. Al Hoyt & Sons, Inc.,

(2011). Derry & Webster, however, alleges not only that

Bayview breached the contract, but that it knowingly induced

Derry & Webster to assent to its motion by misrepresenting its

willingness to accept a short sale. See Doc. No. 12 at 8-9.

The New Hampshire Supreme Court has consistently held that

inducing another to enter a contract based on a knowing

misrepresentation of the promisor’s intent to perform under the

contract violates the CPA. See, e.g., George,

-

30 (defendant who took money to build bridge, but never gave

that money to the bridge builder, was liable under CPA); State

v. Sideris,

(2008) (knowingly entering into a

contract with no intention of performing incurs liability under

CPA); Milford Lumber Co. v. RCB Realty, Inc.,

(2001) (defendants who made intentionally vague statements that

they were authorized to use another’s account, and then, when

payment was called for, attempted to disclaim obligation were

liable under CPA). Derry & Webster, therefore, has stated a

claim for relief under the CPA.

D. Counts 4 and 5: Intentional and Negligent Misrepresentation

Counts 4 and 5 allege that Bayview is liable for

intentional and negligent misrepresentation. See Doc. No. 12 at 15 9. In Count 4, Derry & Webster alleges that Bayview is liable

for fraud because it knowingly misrepresented its willingness to

accept a $568,000 short sale with the intention that Derry &

Webster would rely on that misrepresentation by assenting to

Bayview’s motion. See

Reprising a familiar theme, Bayview

responds by again arguing that the bankruptcy court would have

lifted the automatic stay with or without Derry & Webster’s

assent. See Doc. No. 18-1 at 9. For that reason, Bayview

concludes, Derry & Webster “did not rely” on Bayview’s alleged

representation of its willingness to accept a $568,000 short

sale and, consequently, cannot bring a claim of fraud against

it. See

As an initial matter, Bayview’s argument, which flatly

asserts that Derry & Webster did not rely on its stated

willingness to accept a $568,000 short sale, amounts only to a

challenge to the accuracy of the complaint’s factual

allegations. That, of course, is an argument that Bayview is

not entitled to make in a motion to dismiss. See Air Sunshine,

Inc. v. Carl,

(1st Cir. 2011) (in deciding a

motion to dismiss, a federal court must accept as true all

allegations made in the complaint). In any event, and for much

the same reason that I used in rejecting Bayview’s challenge to 16 the contract claim, the underlying merits of Bayview’s and Derry

& Webster’s competing claims regarding the automatic stay are

irrelevant. The complaint alleges that Derry & Webster

surrendered its legal right to resist Bayview’s motion to lift

the automatic stay from the Hudson property, which it was not

obligated to do, and that it did so in reliance on Bayview’s

intentional misrepresentation of its willingness to accept a

short sale. Those facts, as alleged, are sufficient to state a

claim for fraud. See Patch v. Arsenault,

(1995) (“The tort of intentional misrepresentation, or fraud,

must be proved by showing that the representation was made with

knowledge of its falsity or with conscious indifference to its

truth and with the intention of causing another person to rely

on the representation.”). Aside from its impermissible argument

attacking Derry & Webster’s factual allegations, Bayview has

provided no other reason to dismiss Derry & Webster’s fraud

claim. Accordingly, I reject Bayview’s argument for dismissal

of Count 4.

Count 5, however, which alleges negligent rather than

intentional misrepresentation, fails for a different reason: it

is necessarily duplicative of Derry & Webster’s fraud claim.

Bayview’s representation of its willingness to accept a short 17 sale ─ the basis for Derry & Webster’s negligent

misrepresentation claim ─ is a statement of intention.

Statements of intention are actionable only if they are false

when made. See GE Mobile Water, Inc. v. Red Desert Reclamation,

LLC,

(D.N.H. 2014). In other words, a

party that honestly states its intention to do something, and

only later decides not to do it, is not liable for the tort of

misrepresentation. See Thompson v. H.W.G. Group, Inc.,

(1995) (citing Hydraform Prods. Corp. v. Am. Steel &

Aluminum Corp.,

(1985)). Thus, Bayview’s

statement that it would accept a $568,000 short sale would be

actionable only if Bayview had no intention of doing so when it

made the statement to Derry & Webster. See

If Bayview did

not intend to accept a $568,000 short sale when it made the

statement, however, then Bayview necessarily knew that the

statement was false when it was made. A knowing or intentional

misrepresentation is fraud, which Derry & Webster has adequately

pled, not negligent misrepresentation. See 200 North Gilmor,

LLC v. Capital One, Nat’l Ass’n,

(D.

Md. 2012). Under the facts that Derry & Webster has alleged,

therefore, there is no circumstance in which Bayview could be

liable for negligent misrepresentation and not for fraud. 18 Accordingly, I dismiss Derry & Webster’s negligent

misrepresentation claim.

E. Counts 6 and 7: Promissory and Equitable Estoppel

Counts 6 and 7 allege liability for both promissory and

equitable estoppel. Derry & Webster claims that it reasonably

relied on Bayview’s representation of its willingness to accept

a $568,000 short sale in exchange for Derry & Webster’s assent

to its motion to lift the automatic stay. See Doc. No. 12 at

10-11. Bayview responds by once again arguing that it “was

entitled to relief from stay against the [Hudson property] with

or without [Derry & Webster’s] assent.” Doc. No. 18-1 at 11.

For that reason, Bayview contends, Derry & Webster could not

have relied on its promise to accept a short sale. See

Under the equitable doctrine of promissory estoppel, “a

promise reasonably understood as intended to induce action is

enforceable by one who relies upon it to his detriment or to the

benefit of the promisor.” Panto, 130 N.H. at 738 (citing

Restatement (Second) of Contracts § 90). As I have already

explained, Derry & Webster’s assent to Bayview’s motion, as

alleged, benefited Bayview at least by removing the need to

further litigate its request to lift the automatic stay from the

Hudson property. The complaint alleges that Derry & Webster 19 provided this assent in reliance on Bayview’s promise to accept

a $568,000 short sale as settlement of its debt. Those facts,

as alleged, state a claim for promissory estoppel, and the

ultimate merits of Bayview’s motion to lift the automatic stay

are irrelevant.7 Bayview has pointed to no other reason that

warrants dismissal of the promissory estoppel claim. Thus, I

reject Bayview’s motion to dismiss Count 6.8

Count 7, however, which alleges equitable estoppel, is

duplicative of the promissory estoppel claim. As Derry &

Webster itself observes, the doctrine of equitable estoppel, as

opposed to promissory estoppel, “does not involve a promise.

Rather, it serves to forbid one to speak against his own act, 7 Ordinarily, “promissory estoppel is not available [in New Hampshire] in the case of an express, enforceable agreement between the parties covering the same subject-matter.” Rockwood v. SKF USA, Inc.,

(D.N.H. 2010). As this litigation progresses, therefore, the promissory estoppel claim may prove extraneous if it is determined that Derry & Webster and Bayview formed a binding and enforceable contract. At this point, however, the complaint adequately pleads both causes of action, and it would be premature to consider dismissal of either claim on this basis. 8 Citing no cases to support its position, Bayview also argues for dismissal of the promissory estoppel claim because, it contends, Derry & Webster has suffered no injustice that requires the alleged promise’s enforcement. See Doc. No. 18-1 at 11 n. 1. To the extent that I can understand Bayview’s argument, I reject it as an appeal to facts outside the complaint, which, as I have said, Bayview is not entitled to make in a motion to dismiss. 20 representations, or commitments to the injury of one to whom

they were directed and who reasonably relied thereon.” Great

Lakes Aircraft Co.,

. Here, the same alleged

representation underlies both of Derry & Webster’s estoppel

claims: namely, that Bayview would accept a $568,000 short sale.

That representation is a promise that suffices for Derry &

Webster’s promissory estoppel claim, but it cannot double as a

statement of fact that would also support an equitable estoppel

claim. Otherwise, every claim of promissory estoppel would also

entail a claim of equitable estoppel, dissolving the distinction

between the two doctrines. The complaint points to no other

representation of fact that could support an equitable estoppel

claim. Thus, I dismiss Count 7 as duplicative of Count 6.

IV. CONCLUSION

For these reasons, I grant Bayview’s motion to dismiss

(Doc. No. 18) as to Counts 5 and 7 of the amended complaint

(Doc. No. 12) and deny the motion as to the remaining counts.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 29, 2014 21 cc: Paul J. Alfano, Esq. Tyna M. Butka, Esq. Richard C. Demerle, Esq. John F. Hayes, Esq. Robert L. O’Brien, Esq. Gerald R. Prunier, Esq.

22