Opinion
Case No. 2:02-CV-00027PGC
March 6, 2003.
MEMORANDUM OPINION
Pending before the court in this consolidation of three separate lawsuits are forty-seven motions to dismiss one of the three complaints at issue. This complaint consists of twenty claims by the counter-plaintiff Jackson for the recovery of compensatory, consequential and punitive damages, and the rescission and cancellation of all contracts between Jackson and the counter-defendant Volvo Finance, and Jackson and the third-party defendant Volvo Trucks.
Within the collection of the forty-seven motions to dismiss are five motions (three primary and two joinder) that speak to three claims based upon federal statutes. These statutes are the Automobile Dealer's Day in Court Act, the Securities Exchange Act, and the Clayton Act. Because these federal claims fail to state a claim upon which relief can be granted, this court grants the five motions to dismiss with prejudice.
As the court ruled at its hearing on December 13, 2002, the court also grants with prejudice Volvo Finance and Volvo Trucks' motion to dismiss for lack of subject matter jurisdiction the portions of the complaint identified below that would require this court to improperly review bankruptcy court proceedings.
These dismissals leave the court with only state law claims to resolve in this complaint. The court declines to exercise supplemental jurisdiction over these claims and dismisses them without prejudice.
Background
The consolidated litigation in this court revolves around three separate complaints. First, on January 10, 2002, Volvo Commercial Finance, LLC, The Americas ("Volvo Finance") filed a complaint (the "Note Collection Action") in this court against Eric C. Jackson ("Jackson") and Jackson Family Partnership No. 5 (the "Partnership"). That complaint is a simple collection action for $1,382,408.33 plus interest, in which Volvo Finance asserts claims against Jackson as maker of a promissory note and against the Partnership as a guarantor of the note. Second, on February 1, 2002, Jackson and the Great Basin Companies filed against Volvo Finance and Volvo Trucks North America ("Volvo Trucks"), among others, the complaint at issue in this memorandum opinion (the "Volvo Trucks Suit"). (Simultaneously Jackson filed a counterclaim in the Note Collection Action, which is literally a copy of the complaint filed in the Volvo Trucks Suit). Third, on March 11, 2002, Volvo Finance filed another complaint (the "Conversion Lawsuit") in this court against Jackson, the Great Basin Companies, and various other defendants. In that action, Volvo Finance seeks $5,885,222.24 from these defendants based on their alleged conversion of Volvo Finance property.
This memorandum opinion concerns only the Volvo Trucks lawsuit. For purposes of this opinion, the court takes as true the following facts from the face of that complaint.
Relevant Facts
In 1977, Jackson founded the first of the Great Basin Companies, a truck dealership called Great Basin GMC Tuck, Inc. As Jackson grew his business over the next twenty years, he would include "Great Basin" in the names of most of his new companies. Jackson would be the sole or majority shareholder in each of the new companies.
In 1983, Jackson became a Volvo truck dealer. By 1987, Great Basin was Volvo's number one dealer in North America in new truck sales.
In 1991 and 1992, at Volvo Trucks' suggestion, Jackson began buying larger quantities of Volvo trucks from Volvo Trucks at a deep discount based upon concessions administered by Volvo Trucks' President, Executive Vice President and Western Area President. According to Volvo Trucks, Volvo desperately needed Great Basin to do so in order to keep Volvo Trucks' manufacturing facilities open and running. At the time, approximately 10% of all Volvo truck sales in the United States were handled through Great Basin.
In September, 1995, Volvo Truck Finance, the predecessor to Volvo Finance, under the direction of Volvo Trucks, began operating as a finance company. As would its successor Volvo Finance, Volvo Truck Finance obtained all of its business through Volvo Trucks and existed only to finance Volvo truck customers and Volvo dealers.
In February 1996, a few months after Mark Gustafson became CEO of Volvo Trucks, Gustafson announced to Jackson and other dealers that one-half of all Volvo truck dealers would not be in business by the following year. Gustafson told the dealers that Volvo Trucks wanted larger, regional dealers.
By 1999, Jackson owned and operated thirteen Volvo truck dealerships in seven states, an expansion encouraged by Volvo management. In particular, Jackson invested in Great Basin Trucks of Nebraska in Omaha, Nebraska, based on various verbal commitments to him by Volvo Trucks. One such commitment was that Volvo Trucks would ultimately purchase the Nebraska dealership. During this growth period, the Great Basin companies' total debt grew from $5 million to over $60 million, a substantial portion of which was incurred in Jackson and Great Basin's efforts to comply with Volvo Trucks' demand that its dealers either rapidly and aggressively expand or be eliminated.
Gustafson had promised sales support and increased market shares for the dealers that expanded. This promise was illusory. Rather, Volvo Trucks engaged in conduct that controlled and restricted Jackson and Great Basin's pricing strategies. Moreover, Volvo Truck Finance and Volvo Trucks induced Jackson into becoming indebted to Volvo Truck Finance by promising Jackson greater returns on his investments in Volvo truck dealerships and, more important, continued access to the profit sources to which he had access at that time and upon which his dealerships depended (e.g., Volvo trucks equipped with Caterpillar and Detroit Diesel engines). At the time the Volvo defendants made these promises, Jackson alleges, they had the undisclosed intention of refusing to honor their promises. Had Jackson known of Volvo Trucks' intentions and plans to eliminate virtually two-thirds of its product lines and its engine products, Jackson would not have become indebted to Volvo Trucks Finance/Volvo Finance in the amount of $1.3 million.
On June 29, 2000 Great Basin Companies, Inc. became the parent of each of the Great Basin Subsidiary dealerships; that is, the Great Basin dealerships became wholly-owned subsidiaries of Great Basin Companies, Inc. Jackson was the sole or majority shareholder of Great Basin and therefore the sole or majority shareholder of each of the Great Basin Subsidiaries. In December, 2000, the corporate structure of Great Basin Companies changed such that the Great Basin Subsidiaries that were Volvo truck dealerships were separated from the other Great Basin companies and placed under one corporate umbrella. This was to facilitate the sale to Volvo trucks of the Great Basin dealerships. Volvo Trucks had committed to purchase these dealerships by December 31, 2000. It never did so.
In 2001, the Great Basin Volvo truck dealerships were adjudicated as bankrupt and their individual trustees in bankruptcy settled, waived or released any claims the bankrupt dealerships may have had.
Standard of Review on Motion to Dismiss for Failure to State a Claim
The standard of review for a Federal Rules of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim is well established. All well-pleaded factual allegations of the complaint are accepted as true and viewed in the light most favorable to the non-moving party. All reasonable inferences raised in the pleadings are resolved in favor of the plaintiff. "A Fed.R.Civ.P.12(b)(6) motion should not be granted `unless if appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"
See Sutton v. Utah State School for the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
See Dill v. City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir. 1998).
David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996), cert. denied, 522 U.S. 858 (1997) ( quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Automobile Dealer Day in Court Act
This court dismisses Jackson's Automobile Dealer Day in Court Act ("ADDCA") under Fed.R.Civ.P.12(b)(6) for Jackson's failure to state a claim upon which relief can be granted. On the facts of the complaint, Jackson is simply a shareholder and manager of the entity which signed the dealership agreement at issue. However, the ADDCA applies only to the actual corporate entity that signed the agreement. Hence, Jackson has no standing to assert a claim under the ADDCA.Under the ADDCA, only an "automobile dealer" has a federal cause of action against an automobile manufacturer who fails to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, cancelling or not renewing the franchise. The ADDCA is specific about who qualifies as an automobile dealer:
See 15 U.S.C. § 1222.
[t]he term "automobile dealer" shall mean any person, partnership, corporation, association, or other form of business enterprise resident in the United States or in any territory thereof or in the District of Columbia operating under the terms of a franchise and engaged in the sale or distribution of passenger cars, trucks or stationwagons.
Courts have routinely restricted rights under the ADDCA to the actual dealers rather than individuals tangentially affects. For example, applying the ADDCA in Colonial Ford v. Ford Motor Co., the Tenth Circuit based its holding on the requirement, expressed in the ADDCA, that "the defendant manufacturer have a contractual relationship or agreement with the dealer." Similarly, in Milburn v. Ford Motor Co., Inc., the United States District Court for the Eastern District of Oklahoma held that an individual who was President and 50% shareholder of an automobile dealership was not a proper party to bring suit under the express provisions of the ADDCA. The court reasoned
Colonial Ford, Inc. v. Ford Motor Co., 592 F.2d 1126 (10th Cir. 1978), cert. denied, 444 U.S. 837 (1979). See also Randy's Studebaker Sales, Inc. v. Nissan Motor Corp., in U.S.A., 533 F.2d 510 (10th Cir. 1976); American Motors Sales Corp. v. Semke, 384 F.2d 192 (10th Cir. 1967).
Colonial Ford, Inc., 592 F.2d at 1129 n. 4 (emphasis added).
Milburn v. Ford Motor Co., Inc., 437 F. Supp. 7 (E.D.Okla. 1977).
Plaintiff . . . urges that compelling circumstances are present in the instant case to allow the corporate entity [that was the dealer] to be disregarded pursuant to the Kavanaugh and York Chrysler-Plymouth, Inc. decisions. But Plaintiff does not assert herein that Defendant at any time controlled the board of directors of Ken Milburn Ford, Inc., as [did Ford Motor Company] in Kavanaugh. . . . And an examination of the Ford Sales and Service Agreement dated June 1, 1972 between Ken Milburn Ford, Inc. and Defendant discloses that Plaintiff Milburn did not individually sign or execute said agreement. . . . Not only are none of the special circumstances present here as in the cases relied on by Plaintiff . . . but the facts of this case coincide completely with those in Vincel, where [the Second Circuit] held that an individual shareholder of a corporate dealer had no right of action under the [ADDCA]. In Vincel, . . . and in the case at bar, the dealers were corporations, the corporations had gone into bankruptcy, the Trustees in Bankruptcy had released all claims of the corporate dealer against the motor company and then an individual stockholder of the corporate dealer attempted to proceed under the Act against the motor company.
Vincel v. White Motor Corp., 521 F.2d 1113 (2nd Cir. 1975).
Milburn, 437 F. Supp. at 9-10.
In other words, the district court found that Milburn was not the actual dealer and therefore was not the proper party under the ADDCA to bring a suit.
This district court ruling followed all established precedent in the Circuit Courts. The district court carefully distinguished the case before it and the Second Circuit case Vincel from two circuit court opinions — Kavanaugh v. Ford Motor Co. and York Chrysler-Plymouth, Inc. v. Chrysler Credit Corp. — that had allowed an individual to proceed as a party under the ADDCA. However, the respective circuit courts in those opinions had found there were special circumstances that favored their ruling that the individual could proceed.
Kavanaugh v. Ford Motor Co., 353 F.2d 710 (7th Cir. 1965).
York Chrysler-Plymouth, Inc. v. Chrysler Credit Corp., 447 F.2d 786 (5th Cir. 1971).
The special circumstances are as follows. In Kavanaugh, the defendant, Ford Motor Company, had owned all the voting stock in the dealership corporation that had signed the dealership agreement with itself. The Seventh Circuit, therefore, had found it inconceivable that Ford would ever seek the protections of the ADDCA. Hence, for the dealership to be able to avail itself of the protections of the ADDCA, the Seventh Circuit "pierced the corporate" veil and allowed the individual plaintiff to be able to sue in the dealership's interest. In York Chrysler-Plymouth, the Fifth Circuit announced that it was following the reasoning in Kavanaugh. The facts at issue were that the motor company defendant Chrysler had not allowed the Yorks to continue to operate a dealership under a "Direct Dealer Agreement" because it was dissatisfied with the financial condition of the dealership. Yet, under the "Direct Dealer Agreement," Chrysler had had ultimate control of the dealership in that the agreement could "be terminated if Chrysler Motors thought that a disagreement between the [two Yorks] might adversely affect the business." Therefore, on these facts, even though Chrysler had extended to the Yorks a "Term Sales Agreement" at the end of the Direct Dealer arrangement which ran for one year, the Yorks' immediately previous dealership agreement had not been completely free of control from Chrysler when Chrysler had proposed the Yorks move the location of the dealership. It is arguable in York that the change in location of the dealership caused the decline in profitability of the York dealership and that Chrysler had a role in forcing that change in location. Because Chrysler, like Ford in Kavanaugh, would be unlikely to let the Yorks invoke the protections of the ADDCA if it could force the termination of the dealership agreement instead. It makes sense under the reasoning of Kavanaugh that the Yorks as individuals should have standing to sue Chrysler under the ADDCA for its role in causing their dealership's decline in profitability.
Kavanaugh, 353 F.2d at 717.
York Chrysler-Plymouth, 447 F.2d at 790.
Id. at 790-791.
Id. at 789-790.
In Milburn, the Oklahoma district court found no such special circumstances. Instead, Milburn followed the reasoning of the Second Circuit in Vincel. In Vincel, the Second Circuit held that the claims at stake under the ADDCA "belonged" to the dealership because they related to alleged wrongs having their effect solely on its property and business. The Second Circuit reasoned that where a motor vehicle dealership is doing business in corporate form, the ADDCA contains no hint that it intends a departure from the established principle that the locus of a right of action against the manufacturer is in the corporation. In Vincel, the dealers were corporations, the corporations went into bankruptcy, and the Trustees in Bankruptcy had released all claims of the corporate dealer against the motor company. This was not enough to create a cause of action under the act for any individual to sue in his individual capacity.
Id. at 1118.
Id. at 1120.
Under Vincel's reasoning, the court in Milburn held that plaintiff Milburn could not proceed as an individual under the ADDCA. Milburn's individual claims were based solely upon his putting up personal collateral and giving personal guarantees for the obligations and loans of the corporate dealer, which he had lost or had personal responsibility for because of the bankruptcy of the corporate dealer.
Vincel and Milburn are on-point with the case before this court. Jackson alleges no credible special circumstances whereby Volvo had real control over the dealerships in which Jackson owned stock. Therefore, following the reasoning of the Second Circuit and the Oklahoma district court, this court rules that Jackson may not pursue his claim under the ADDCA because he is not a dealer as intended by the act. Hence, under the ADDCA, Jackson does not have standing to assert a claim and his claim is dismissed under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted.
Securities Exchange Act
Jackson also raises claims under the Securities Exchange Act of 1934 against both Volvo Finance and Volvo Trucks. Jackson's claims against Volvo Finance must clearly be dismissed with prejudice. Volvo Finance is not a party to the alleged investment contract.
With respect to the claims against Volvo Trucks, Jackson has also failed to state a claim upon which relief can be granted. On the facts of the complaint, as further elaborated on by Jackson's counsel at oral argument, Volvo Trucks made (at most) verbal commitments to Jackson in order to get Jackson to invest in new geographic areas, specifically a dealership in Omaha, Nebraska. These verbal commitments constitute the alleged investment contract that Jackson claims he had with Volvo Trucks. However, these verbal commitments are not a security as contemplated by the Securities Exchange Act. Before this court reaches the issue of fraud there must be an investment contract at stake. There is none such in this action. Therefore, Jackson's claim under the Act must be dismissed.
The decisive issue is whether verbal commitments Volvo Trucks made to Jackson in order to get Jackson to invest in new dealerships is a security under the Securities Exchange Act. Rule 10(b)(5), promulgated under the Securities Exchange Act of 1934, provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud;
(b) to make any untrue statement of a material fact, or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or
(c) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person;
in connection with the purchase or sale of any security.
17 C.F.R. § 240.10(b)(5) (emphasis added).
The Tenth Circuit has held that in order to determine whether a contract is a "security" as contemplated by the Securities Exchange Act, the contract must be an "investment contract," that is, "[a] contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or third party."
Meyer v. Dans un Jardin, S.A., 816 F.2d 533, 534 (10th Cir. 1987) ( quoting S.E.C. v. W.J. Howey Co., 328 U.S. 293, 298-99 (1946)).
Jackson alleges that he created a security when he invested in the Volvo Trucks enterprise — i.e., when he invested in his own dealerships and thereby accepted Volvo Trucks verbal commitments. Tenth Circuit precedent, however, requires Jackson to expect profits from his investment in the Volvo Trucks enterprise — and Jackson does not allege in the complaint how he was going to gain profits from the efforts of Volvo Trucks, except that Volvo Trucks would later buy out the Nebraska dealership from him. Moreover, any argument that Jackson's investment in his own dealership was his acceptance of the investment contract with Volvo Trucks enterprise must fail because the profit Jackson would make from his investment would come from his own managerial efforts combined, perhaps, with assistance from Volvo Trucks by giving Jackson exclusive sale rights in a particular territory. That profit would not come "solely from the efforts of the promoter or third party" as required by the Tenth Circuit.
The fact that Jackson's investing in his own business does not constitute the acceptance of an investment contract is no mere technicality. As a matter of policy, if such an acceptance could create an investment contract, then a formidable number of business deals would become designated investment contracts. These routine business arrangements cannot be what Congress meant to regulate when it passed the specialized requirements of Securities Exchange Act of 1934. Therefore, this court finds that at best Jackson created a common law contract with Volvo Trucks when he invested in his dealerships. He did not invest in any common enterprise where Volvo Trucks would be the sole promoter of profits.
Hence, this court must dismiss Jackson's securities fraud claim with prejudice under the Securities Exchange Act for failure to state a claim upon which relief can be granted.
Antitrust Claim under the Clayton Act
Just as the two previous federal claims fail as a matter of law, Jackson's antitrust claim likewise fails. Under the Clayton Act, shareholders such as Jackson do not have standing to bring direct action for supposed antitrust injuries when those injuries are allegedly suffered by corporate entities in which they hold ownership interests. It was the Great Basin dealerships that would have had standing to assert an antitrust claim, not Jackson as a shareholder.
Section 4 of the Clayton Act permits private damage actions for antitrust injuries to plaintiffs who have been injured in their "business or property" by reason of anything forbidden by the antitrust laws. The Eight Circuit case of Lovett v. General Motors Corp perhaps best demonstrates the point that shareholders who only assert injury to their ownership interests in corporate entities are not proper parties under the Act because their economic loss does not meet the Clayton Act requirement of injury flowing directly from an alleged antitrust injury. To meet the Clayton Act requirement, the injury and damages must flow and be caused by the supposed illegal activity; it is not sufficient that the injury diminished the value of a stock ownership investment.
15 U.S.C. § 15.
Lovett v. General Motors Corp., 975 F.2d 518 (8thCir. 1992), cert. denied, 510 U.S. 1113 (1994); see also Vol. 2A Areeda and Hovenkamp, Antitrust Law, Section 378(d) (1995).
In Lovett, the plaintiff, Daniel John Peterson, along with the trustee of his bankrupt corporate automobile dealership, brought an action against General Motors for various antitrust violations. After a jury verdict in favor of both plaintiffs, General Motors moved for JNOV. The district court denied it with respect to the bankrupt dealership, but granted it with respect to Peterson, who owned the stock of the bankrupt dealership. The district court held that Peterson had no standing to assert his claims of antitrust injury. The Eighth Circuit affirmed this ruling as follows:
Peterson seeks damages as JPM's sole owner, director, chief executive officer, designated dealer-operator, facilities landlord, equipment lessor, investor, and debt guarantor. Peterson contends that as a result of GM's antitrust violations, "JPM was not delivered motor vehicles; JPM was forced out of business and into bankruptcy; and as a direct consequence of this, [Peterson] lost his rental income, wages, dividends and cash flow from his dealership. . . . At trial, experts testified that Peterson's losses included: loss of the dealership land and building owned by Peterson and leased to JPM; loss of Peterson's home because he could not pay his mortgage; loss of Peterson's personal interest in a family investment partnership pledged to General Motors Acceptance Corporation; loss of Peterson's automobile leasing business; . . . Although Peterson undoubtedly suffered injuries as a result of GM's actions, his injuries were a derivative consequence of JPM's injuries. None of the injuries were inflicted directly on Peterson by GM's alleged anticompetitive conduct. Instead, the injuries are a direct result of JPM's failure. Peterson's own explanation of his injuries shows that JPM was the target of GM's anticompetitive activity and that Peterson's injuries are simply an indirect result. In sum, Peterson's damages are incidental to the alleged antitrust activity and not the type of loss Congress intended to prevent with the antitrust laws.
Lovett, 975 F.2d at 521.
In reaching its decision, the Lovett court relied upon the Sixth Circuit decision of Peck v. General Motors Corp. There, the Sixth Circuit affirmed a district court dismissal under Rule 12(b)(6) stating:
See Peck v. General Motors Corp, 894 F.2d 844 (6th Cir. 1990).
While the Pecks attempt to claim the corporate entity's damages as their own by substituting their individual names in lieu of Roger Peck Chevrolet at various points in their complaint, this cosmetic approach does not blur the distinction between those damages incurred directly by the corporate entity and those incurred incidentally by the corporation's employees and shareholders.
Id. at 847.
In Peck, the Pecks alleged that an intentional antitrust conspiracy was directed against them as individuals. The defendants GMC and GMAC, on the other hand, argued that any antitrust conspiracy that was perpetrated would have been directed at Roger Peck Chevrolet as a corporate entity, making the Pecks' injuries incidental to the alleged misconduct. The Sixth Circuit held that as a sole shareholder of a bankrupt corporation, Peck would not be allowed antitrust standing where shareholder's complaint failed to state any injury different in kind or magnitude from the corporation's injury.
Id. See also Meyer Goldberg, Inc. of Lorain v. Goldberg, 717 F.2d 290, 294 (6th Cir. 1983). (Sole shareholder of bankrupt corporation not allowed antitrust standing where shareholder's complaint failed to state any injury different in kind or magnitude from the corporation's injury).
Here, the facts are on-point with those in Lovett and Peck. Jackson alleges he was individually injured as the result of an antitrust conspiracy perpetrated by Volvo Trucks and Volvo Finance. This court follows the guidance of Lovett and Peck to conclude that Jackson does not have standing to sue as an individual shareholder in the Great Basin companies. Any antitrust violation by Volvo Trucks would have been directed at the Great Basin dealerships and not at Jackson as an individual.
Hence, since Jackson does not have standing to sue under the Clayton Act, Jackson's antitrust claim must be dismissed with prejudice under Rule 12(b)(6) for failure to state a claim.
Bankruptcy Claims
At oral argument on December 13, 2002, the court granted the defendants' motion to dismiss with prejudice the parts of the complaint that essentially challenged findings made by the bankruptcy court. The grounds for the court's decision are stated at greater length in the transcript of the hearing. Following that ruling, the court requested briefing which parts of the complaint would be subject to that ruling. Having reviewed that briefing, the court now dismisses with prejudice the following portions of Plaintiff's Amended Complaint: paragraphs 210-11 and 219-49; and paragraphs 396 and 412-33, to the extent these allegations are intended to refer to bankruptcy proceedings and/or bankruptcy sales involving Volvo Trucks purchase of debtor-in-possession Great Basin GMC Truck, Inc.'s assets.
Remaining State Law Claims
These dismissals with prejudice leave the court with only state law claims to resolve in the complaint. Because diversity of citizenship does not exist among the parties, the court does not have subject matter jurisdiction over the remaining claims but rather has, at most, supplemental jurisdiction. The court declines to exercise supplemental jurisdiction because it has dismissed all claims over which it has original jurisdiction. The court therefore dismisses, without prejudice, the remaining state law claims. The defendants have offered other grounds for dismissing these claims, but in light of this disposition, the court finds it unnecessary to reach them. Therefore, the court denies as moot the Volvo defendants' outstanding forty-one motions to dismiss that relate to the state law claims.
CONCLUSION
For the foregoing reasons, the court GRANTS Defendants' motions to dismiss Jackson's claims under the Automobile Dealer Day in Court Act (60-1), the Securities and Exchange Act (72-1 and 96-2), and the Clayton Act (68-1 and 95-2). The court further GRANTS the motion to dismiss portions of Jackson's complaint challenging findings of the bankruptcy court (38-1 and 82-1), as explained above. In light of these dismissals, the court dismisses all the remaining state law claims without prejudice. In light of this disposition, the Defendant's remaining motions to dismiss are rendered moot and are therefore DENIED without reaching their merits. The docket entries for these remaining motions are: 34-1; 34-2; 36-1; 36-2; 40-1; 42-1; 44-1; 48-1; 50-1; 52-1; 54-1; 56-1; 58-1; 62-1; 64-1; 66-1; 70-1; 74-1; 76-1; 78-1; 80-1; 81-2; 97-2; 98-1; 98-2; 99-2; 100-2; 101-1; 101-2; 102-1; 102-2; 103-1; 103-2; 105-1; 105-2; 106-1; 106-2; 107-2; 108-1; 108-2. The Clerk of the Court is directed to enter judgment accordingly, with each party to bear its own fees and costs.
SO ORDERED.