leason ellis v pta.pdf by martyschwimmer

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									           Case 7:13-cv-02880-VB Document 41 Filed 07/02/14 Page 1 of 13



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
LEASON ELLIS LLP,                                             :
                           Plaintiff,                         :
                                                              :
v.                                                            :
                                                              :   MEMORANDUM DECISION
PATENT & TRADEMARK AGENCY LLC and :
ARMENS OGANESJANS,                                            :   13 CV 2880 (VB)
                           Defendants.                        :
--------------------------------------------------------------x

Briccetti, J.:

        Plaintiff Leason Ellis LLP brings this action against defendants Patent & Trademark

Agency LLC (“PTA”) and Armens Oganesjans, 1 asserting claims under Section 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a), and state law claims for unfair competition, deceptive

business practices and false advertising under N.Y. Gen. Bus. Law §§ 349 and 350, and tortious

interference with prospective economic relations.

        Plaintiff filed its original complaint on April 30, 2013. Defendants moved to dismiss,

and plaintiff filed an amended complaint on August 15, 2013.

        Now pending is defendants’ Rule 12(b)(6) motion to dismiss plaintiff’s federal unfair

competition claim, plaintiff’s state common law unfair competition claim, and plaintiff’s claims

under Sections 349 and 350. (Doc. #25). 2

        For the following reasons, the motion is GRANTED in part and DENIED in part.

        The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


1
      Oganesjans is sued herein as “Armens Organesjans.” The Court has been informed
Oganesjans is the correct spelling.
2
        On March 27, 2014, after defendants’ motion was fully submitted, the Court directed the
parties to submit simultaneous supplemental briefs addressing the effect, if any, of the Supreme
Court’s decision in Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377
(2014), on the issues presented herein. (Doc. #38).


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                                         BACKGROUND

       In ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual

allegations in the amended complaint and draws all reasonable inferences in favor of plaintiff.

       Plaintiff Leason Ellis LLP is a law firm specializing in intellectual property law. Among

other things, plaintiff helps its clients acquire and maintain trademark registrations with the

United States Patent and Trademark Office (“USPTO”).

       According to the amended complaint, defendant PTA “seeks to confuse trademark

owners into purchasing services under false color of authority.” (Am. Compl. ¶ 18). PTA

allegedly holds itself out as a government entity (or as affiliated with the USPTO) by using a

misleading name and website, and by employing a website URL located in the “.org” top-level

domain instead of the “.com” top-level domain (i.e., “www.patenttrademarkagency.org”).

       Plaintiff alleges defendants mail confusing “reminder” notices to trademark owners that

appear to be government-issued and falsely state the owners’ trademarks are about to expire.

These notices are actually solicitations, which defendants allegedly distribute to mislead

trademark owners into using PTA’s services, and which do not disclose that the fee charged by

the USPTO to renew a trademark is $100 per class. (PTA charges $985 to renew the registration

of one “class” of goods or services and $385 for each additional class.)

       Although defendants’ website states “[w]e are not lawyers and do not provide legal

advice” (id. ¶ 22), plaintiff alleges defendants nevertheless advertise legal services and that

defendant Oganesjans engages in the “unauthorized practice of law” by appearing before the

USPTO without a law license in violation of certain USPTO regulations.

       PTA has allegedly solicited plaintiff’s clients and potential clients, and plaintiff’s clients

have complained to plaintiff about the solicitations. According to plaintiff, the solicitations have




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confused its clients as well as potential clients, who believe the notices originated with a

government entity, plaintiff, or another “legitimate” business. Plaintiff further asserts PTA’s

marketing efforts “create a false and deceptive representation of equivalence with the legitimate

trademark-related services provided by those such as [p]laintiff,” thereby unfairly “diverting

business” from plaintiff and allowing defendants “to unjustly profit from providing inferior

services to unsuspecting trademark owners.” (Id. ¶¶ 33, 88).

       The USPTO has received complaints from the public about PTA, examples of which are

attached to the amended complaint. (Id., Exs. L-1, L-2).

                                          DISCUSSION

I.     Standard of Review

       In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the

sufficiency of the amended complaint under the “two-pronged approach” outlined by the

Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal

conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to

withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010).

Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v.

Iqbal, 556 U.S. at 679.

       To survive a Rule 12(b)(6) motion, the allegations in the amended complaint must meet a

standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550

U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct



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alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.

II.      Consideration of Documents Outside of the Pleadings

         Defendants urge the Court not to consider the newly presented documents attached to

plaintiff’s opposition papers in deciding the motion to dismiss.

         “When assessing a Rule 12(b)(6) motion, the court may not consider evidence proffered

by the parties. Rather, it is limited to reviewing the four corners of the complaint, any

documents attached to that pleading or incorporated into it by reference, any documents that are

‘integral’ to the plaintiff’s allegations even if not explicitly incorporated by reference, and facts

of which the court may take judicial notice.” BLT Rest. Grp. LLC v. Tourondel, 855 F. Supp. 2d

4, 15 (S.D.N.Y. 2012); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.

2002).

         Generally, when “matters outside the pleadings are presented to and not excluded by the

court” at the motion to dismiss stage, the motion must be converted to a motion for summary

judgment, and “[a]ll parties must be given a reasonable opportunity to present all the material

that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Kopec v. Coughlin, 922 F.2d 152, 154

(2d Cir. 1991) (“Rule 12([d]) gives district courts two options when matters outside the

pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional

material and decide the motion on the complaint alone or it may convert the motion to one for

summary judgment.” (internal quotation marks omitted)).

         “Federal courts have complete discretion to determine whether or not to accept the

submission of any material beyond the pleadings offered in conjunction with a Rule 12(b)(6)




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motion, and thus complete discretion in determining whether to convert the motion to one for

summary judgment.” Carione v. United States, 368 F. Supp. 2d 186, 191 (E.D.N.Y. 2005)

(internal quotation marks omitted).

       The Court concludes it is not appropriate to convert the instant motion to dismiss into a

motion for summary judgment, and will thus determine whether or not the newly presented

documents are part of the amended complaint.

       “Courts in this Circuit have made clear that a plaintiff may not shore up a deficient

complaint through extrinsic documents submitted in opposition to a defendant’s motion to

dismiss.” Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122-23

(S.D.N.Y. 2010); see also Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)

(plaintiff not permitted to amend complaint through a brief filed in opposition to a motion to

dismiss). However, if the extrinsic documents are incorporated by reference in, or are integral

to, the complaint, they may be considered on a motion to dismiss.

       Here, plaintiff has submitted extrinsic correspondence apparently received in response to

a Freedom of Information Act request. The correspondence is not attached to the amended

complaint, but is referred to therein as follows: “Upon information and belief, the USPTO has

complained to [PTA] about its deceptive activities. Plaintiff has filed a FOIA request to obtain

such correspondence.” (Am. Compl. ¶ 65).

       To be incorporated by reference, the complaint must make “a clear, definite and

substantial reference to the documents.” Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 330-31

(S.D.N.Y. 2003). “Multiple references to, and lengthy quotations from, an outside document

have been considered sufficiently substantial to incorporate the document into the complaint by

reference.” Allen v. Chanel Inc., 2013 WL 2413068, at *5 (S.D.N.Y. June 4, 2013).




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         The single reference made to hypothetical USPTO correspondence is not sufficiently

substantial to incorporate the correspondence into the amended complaint by reference. See

Williams v. Time Warner, Inc., 440 F. App’x 7, 9 (2d Cir. 2011) (summary order) (“A mere

passing reference or even references . . . to a document outside of the complaint does not, on its

own, incorporate the document into the complaint itself.”).

         Nor is the correspondence integral to the amended complaint. A document is integral to

the complaint when the complaint “relies heavily upon its terms and effect.” DiFolco v.

MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (internal quotation marks omitted).

“[A] plaintiff’s reliance on the terms and effect of a document in drafting the complaint is a

necessary prerequisite to the court’s consideration of the document on a dismissal motion; mere

notice or possession is not enough.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.

2002).

         Here, although plaintiff may have had notice of the correspondence, notice is insufficient,

and plaintiff could not have relied heavily on the terms and effects of the correspondence, as it

was not in plaintiff’s possession at the time the amended complaint was filed.

         For these reasons, the Court will not consider the correspondence attached to plaintiff’s

opposition papers in deciding the motion to dismiss.

III.     Federal Claims

         A.     Construction of Plaintiff’s Lanham Act Claims

         The amended complaint asserts two federal claims under the Lanham Act: “Federal

Unfair Competition under 15 U.S.C. § 1125(a)” (“Count I”), and “Federal False Advertising

under 15 U.S.C. § 1125(a)” (“Count II”).




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       Defendants only move to dismiss Count I, which they have interpreted as a claim for

false association and/or trademark infringement under Section 1125(a)(1)(A). In its opposition

brief, however, plaintiff clarified: “Leason Ellis does not allege a claim under [Lanham Act]

§ 43(a)(1)(A).” (Doc. #31 at p. 15). 3

       Defendants now urge the Court to strike either Count I or Count II “for redundancy,”

reasoning there are only two bases of liability under Section 1125(a)(1), and plaintiff explicitly

rejected one of those bases in its opposition brief.

       The Court agrees with defendants that there are only two bases of liability under Section

1125(a)(1), and a claim brought under Section 1125(a)(1)(B) is properly understood as a claim

for false advertising. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.

1377, 1384 (2014) (“Section 1125(a) thus creates two distinct bases of liability: false association,

§ 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).”); see also McCarthy on Trademarks

and Unfair Competition § 27:9 (4th ed.) (observing Section 1125(a) developed into the “federal

vehicle for the assertion of two major and distinct types of ‘unfair competition’: (1) infringement

of even unregistered marks, names and trade dress, and (2) ‘false advertising.’”).

       As plaintiff has disavowed any claim under Section 1125(a)(1)(A), it follows that both of

plaintiff’s Lanham Act claims must arise under Section 1125(a)(1)(B) and, as such, are both

claims for false advertising. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.

Ct. at 1384.




3
        Plaintiff makes passing references to Section 1125(a)(1)(A) in its supplemental brief on
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). To the extent
plaintiff seeks to assert a Section 1125(a)(1)(A) claim through its supplemental brief—which the
Court clearly limited to the effect of the Lexmark decision—plaintiff waived any such claim
when it expressly represented it was not pursuing such a claim in its opposition brief. (Doc. #31
at p. 15 (“Leason Ellis does not allege a claim under [Lanham Act] § 43(a)(1)(A).”)).


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        Nevertheless, the Court declines to strike either Count I or Count II as redundant, and

instead interprets plaintiff’s federal claims as two different theories upon which a court could

find liability for false advertising under Section 1125(a)(1)(B).

        Accordingly, the Court construes Counts I and II as two theories of a single claim for

false advertising.

        B.       Plaintiff’s Consolidated Section 1125(a)(1)(B) Claim

        Defendants argue plaintiff lacks “standing” to sue under the Lanham Act. As the

Supreme Court recently clarified, however, assuming plaintiff has standing to sue under Article

III, whether Congress has authorized plaintiff to sue under the Lanham Act is not question of

standing, and therefore does not implicate the Court’s jurisdiction. Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. at 1387 (“In sum, the question this case presents is whether

Static Control falls within the class of plaintiffs whom Congress has authorized to sue under

§ 1125(a). In other words, we ask whether Static Control has a cause of action under the

statute.”); see generally id. at n.4.

        Defendants do not contend the Court lacks subject matter jurisdiction because plaintiff

lacks Article III standing, and the Court is satisfied it has jurisdiction over this case. See id. at

1386 (plaintiff’s allegations of lost sales and damage to business reputation conferred Article III

standing to pursue Section 1125(a)(1)(B) claim for false advertising).

        Accordingly, because defendants only move to dismiss a perceived claim under Section

1125(a)(1)(A), which plaintiff has since disavowed and the Court has construed as part of




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plaintiff’s Section 1125(a)(1)(B) claim, defendants’ motion to dismiss Count I of the amended

complaint under Rule 12(b)(6) is denied as moot. 4

       Plaintiff’s consolidated Section 1125(a)(1)(B) claim for false advertising will proceed.

IV.    State Law Claims

       A.      Common Law Unfair Competition

       Count III is a claim for unfair competition under New York common law. Plaintiff

argues defendants unfairly compete by soliciting services “that grossly exceed their advertised

value . . . in bad faith so as to unjustly profit from providing inferior services to unsuspecting

trademark owners” (Am. Compl. ¶¶ 86, 88), thereby “diverting business” from plaintiff. (Id.

¶ 34). Plaintiff alleges PTA’s name and website are designed to make it appear as though PTA is

a government entity or otherwise affiliated with the USPTO, and defendants mail misleading

solicitations to trademark owners that falsely state their trademarks are “about to expire,” which

are intended “to confuse trademark owners into purchasing services.” (Id. ¶¶ 18, 29).

       As the New York Court of Appeals has explained, there are “two theories of

common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini,

Inc., 9 N.Y.3d 467, 476 (2007). “‘Palming off’—that is, the sale of the goods of one

manufacturer as those of another—was the first theory of unfair competition endorsed by New

York courts.” Id. “The gravamen of an unfair competition claim for ‘palming off’ is that the

labors and expenditures of the plaintiffs have been misappropriated by the defendants, and are

likely to cause confusion among the purchasing public as to the origin of the product.”

Gameologist Grp., LLC v. Scientific Games Int’l, Inc., 838 F. Supp. 2d 141, 166 (S.D.N.Y.

2011), aff’d, 508 F. App’x 31 (2d Cir. 2013) (internal quotation marks omitted); see also Jeffrey


4
       It is therefore unnecessary to address defendants’ arguments regarding whether Congress
has authorized plaintiff to sue under Section 1125(a)(1)(A).


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Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 34-35 (2d Cir. 1995) (“In a common law

unfair competition claim under New York law, the plaintiff must show either actual confusion in

an action for damages or a likelihood of confusion for equitable relief.”).

       “The related theory of ‘misappropriation’ relies on the principle that one may not

misappropriate the results of the skill, expenditures[,] and labors of a competitor and is best

illustrated by a defendant’s arrogation of the goodwill of the plaintiff by using the plaintiff’s

name, trademark, or trade dress.” Roche Diagnostics GmbH v. Enzo Biochem, Inc., 2013 WL

6987614, at *7 (S.D.N.Y. Dec. 6, 2013) (internal quotation marks omitted); see also ITC Ltd. v.

Punchgini, Inc., 9 N.Y.3d at 478 (“Under New York law, [a]n unfair competition claim involving

misappropriation usually concerns the taking and use of the plaintiff’s property to compete

against the plaintiff[’]s own use of the same property.” (internal quotation marks omitted)).

       “The essence of both of these claims is that a defendant assembled a product which bears

so striking a resemblance to the plaintiff[’]s product that the public will be confused as to the

identity of the products.” Roche Diagnostics GmbH v. Enzo Biochem, Inc., 2013 WL 6987614,

at *7 (internal quotation marks omitted).

       Although plaintiff may have alleged public confusion of PTA with the USPTO, plaintiff

has pleaded no facts supporting a plausible inference of any public confusion of PTA with

plaintiff. 5 Plaintiff baldly alleges clients and potential clients confuse PTA with itself, while

conceding PTA’s website states: “[w]e are not lawyers and do not provide legal advice.” (Am.


5
        Nor do the complaints about PTA made by members of the public to the USPTO, which
are attached to the amended complaint, support a plausible inference of public confusion as
between PTA and plaintiff—or law firms in general. On the contrary, although these complaints
suggest trademark owners thought the PTA solicitations might have originated with the USPTO,
several of these owners apparently reported the PTA notices to their attorneys. (See, e.g., Am.
Compl., Ex. L-1, at pp. 6, 23, 79). Thus, the complaints do not support an inference of public
confusion as between either: (i) PTA and plaintiff or (ii) PTA and law firms, generally.


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Compl. ¶ 22). Plaintiff further alleges, without factual support, that defendants’ marketing

efforts “create a false and deceptive representation of equivalence with the legitimate trademark-

related services provided by those such as [p]laintiff.” (Id. ¶ 33). Such unsupported allegations

are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 6

       Moreover, “[a]lthough, prior to the New York Court of Appeals’ holding in ITC Limited,

Second Circuit dicta broadly construed the cause of action for unfair competition, it is now clear

that [t]he tort is not all-encompassing[.] To the contrary, in rejecting the notion that unfair

competition is equivalent to the amorphous term ‘commercial unfairness,’ the New York Court

of Appeals has stated that misappropriation of another’s commercial advantage is a cornerstone

of the tort.” Roche Diagnostics GmbH v. Enzo Biochem, Inc., 2013 WL 6987614, at *7 n.7

(internal citations and quotation marks omitted).

       Plaintiff has not plausibly pleaded PTA misappropriated plaintiff’s commercial

advantage.

       Finally, plaintiff’s allegations of Oganesjans’ “unauthorized practice of law” do not

support its unfair competition claim. Plaintiff plainly lacks the authority to enforce regulations

promulgated by the USPTO regarding who may practice before it. 7

       For these reasons, plaintiff’s common law unfair competition claim is dismissed.

       B.      General Business Law Sections 349 and 350

       Section 349 provides: “Deceptive acts or practices in the conduct of any business, trade

or commerce or in the furnishing of any service in this state are hereby declared unlawful.” N.Y.


6
          Because plaintiff’s claim is deficient for failure to allege confusion between PTA and
itself, it is unnecessary to reach the issue of whether defendants acted in bad faith.
7
        Plaintiff cites no cases, and the Court is aware of none, supporting the proposition that an
alleged violation of USPTO regulations governing who may practice before the Office supports
any of its claims.


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Gen. Bus. Law § 349. To allege a Section 349 claim, plaintiff must plead three elements: “first,

that the challenged act or practice was consumer-oriented; second, that it was misleading in a

material way; and third, that the plaintiff suffered injury as a result of the deceptive act.”

Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000).

        Section 350 proscribes “[f]alse advertising in the conduct of any business, trade or

commerce or in the furnishing of any service in [New York] state.” N.Y. Gen. Bus. Law § 350.

Substantially the same analysis applies to claims brought under Section 350 as claims brought

under Section 349. See Maurizio v. Goldsmith, 230 F.3d 518, 521-22 (2d Cir. 2000) (per

curiam); Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1 (2002) (“The standard for

recovery under General Business Law § 350, while specific to false advertising, is otherwise

identical to section 349.”).

        Defendants argue plaintiff has failed to plead the first element, because the challenged

practice must be “consumer-oriented,” and owners of trademarks are businesses, not consumers.

        Plaintiff contends businesses can be consumers for the purposes of Sections 349 and 350.

        The Court agrees with plaintiff.

        Section 349 “does not preclude an action by one business against another”; however, “the

gravamen of the complaint must be consumer injury or harm to the public interest.” Revlon, Inc.

v. Heaven Scent Cosmetics, Ltd., 1991 WL 200209, at *4 (E.D.N.Y. Oct. 2, 1991) (internal

quotation marks omitted); see also Weight Watchers Int’l, Inc. v. Stouffer Corp., 744 F. Supp.

1259, 1285 (S.D.N.Y. 1990) (holding competitors may sue under Section 349 “so long as some

harm to the public at large is at issue”).

        Here, the alleged practices, if proven, would involve public harm. Moreover, plaintiff

has also plausibly pleaded the second and third elements of its claim.




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       Defendants’ motion to dismiss plaintiff’s Sections 349 and 350 claims is thus denied. 8

V.     Plaintiff’s Motion for Sanctions

       Plaintiff’s request for “reasonable attorneys’ fees and costs incurred in connection with

opposing” defendants’ motion to dismiss, which the Court construes as a motion for sanctions

under Rule 11(c)(2), is denied as both procedurally improper and plainly meritless.

       Plaintiff is cautioned against making such frivolous motions in the future.

                                          CONCLUSION

       Defendants’ motion to dismiss Counts I, III, IV, and V of the amended complaint is

GRANTED in part and DENIED in part.

       Plaintiff’s consolidated false advertising claim under Section 1125(a)(1)(B), its deceptive

business practices and false advertising claims under Sections 349 and 350, and its claim for

tortious interference with prospective economic relations, will proceed.

       Plaintiff’s motion for sanctions is DENIED.

       The Clerk is instructed to terminate the pending motion. (Doc. #25).

Dated: July 2, 2014
       White Plains, NY

                                             SO ORDERED:



                                             ____________________________
                                             Vincent L. Briccetti
                                             United States District Judge



8
         Defendants also move to dismiss the entire amended complaint as against Oganesjans,
arguing plaintiff failed to serve Oganesjans properly. On September 18, 2013, however, after
filing the instant motion to dismiss, defendants’ attorneys apparently accepted service on behalf
of Oganesjans under Rule 4(e)(2)(C). (See Doc. #27). Accordingly, defendants’ Rule 12(b)(5)
motion to dismiss the amended complaint as to Oganesjans is denied as moot.


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