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CASTLE v. GROUSE

United States District Court, E.D. Pennsylvania


February 11, 2004.

JOSEPH L. CASTLE, II, et al.
v.
LINDA J. GROUSE, M.D.

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

Plaintiffs, Trustees of the AHP Settlement Trust (the "Trust"),*fn1 have sued defendant Linda J. Grouse, M.D. under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964, et seq., as well as for various common law torts, including fraud. Defendant has moved to dismiss this action under Rule 12(b)(3) of the Federal Rules of Civil Procedure for improper venue and under Rule 12(b) (6) for failure to state a claim upon which relief can be granted.

I.

  This action is related to the nationwide Class Action Settlement involving Wyeth's diet drugs Pondimin and Redux, commonly known as fen-phen. The class action, as well as Mutli-District Litigation No. 1203 involving fen-phen, are both situated in this court. In accordance with the Class Action Settlement Agreement approved by this court in Pretrial Order ("PTO") No. 1415 in Brown, et al. v. American Home Products Page 2 Corporation, Civ.A. No. 99-20593 (E.D. Pa.), the Trust was established and funded by Wyeth to pay benefits to class members who suffered mitral or aortic heart valve regurgitation from ingesting fen-phen. To obtain those benefits a class member is required to submit an echocardiogram read by a board-certified cardiologist who certifies that the class member's condition meets the definitions set forth in the Settlement Agreement. Settlement Agreement, § VI.C. The cardiologist must supply various medical information about the class member, including the echocardiogram readings, on a court-approved form known as a Green Form, and must attest to the accuracy of the information presented under penalty of perjury. Settlement Agreement, § VI.C.4; Green Form, Part II. The Green Form also has a section to be completed and signed by the claimant and one to be completed and signed by the claimant's attorney.

  Dr. Crouse, a board-certified cardiologist, was engaged by various attorneys to read and certify the echocardiograms of some 2,500 class members. The complaint asserts that hundreds of Dr. Grouse's readings were not only medically unreasonable but that she and others were involved in a scheme to defraud the Trust. It further alleges that as a result of the Trust's reliance on her certifications given under oath, it paid out several million dollars to undeserving claimants. The Trust seeks compensatory and punitive damages. Page 3

  II.

  First, Dr. Grouse challenges venue in this district. As the defendant, she bears the burden of proving that venue is improper. Myers v. American Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982); Simon v. Ward, 80 F. Supp.2d 464, 466-68 (E.D. Pa. 2000). The relevant facts, however, are not in dispute.

  Dr. Grouse resides and practices medicine with Kramer and Grouse Cardiology, P.C.*fn2 ("Kramer and Grouse") in Kansas City, Missouri, where she read all the echocardiograms in issue and attested to the completed Green Forms. Immediately above the line for her signature and the date are the following two sentences:

This form is an official court document sanctioned by the Court that presides over the Diet Drug Settlement and submitting it to the Claims Administrators is equivalent to filing it with a Court. I declare under penalty of perjury, that the information provided in this form is correct to the best of my knowledge, information and belief.
Dr. Grouse forwarded the completed Green Forms to the various attorneys by whom she was engaged, and the attorneys in turn transmitted the forms to the Trust.

  When completed, the forms were sent to the Diet Drug Settlement, P.O. Box 7939, Philadelphia, PA 19101. This address was on the first page of the Green Form. It is undisputed that the Green Forms certified by Dr. Grouse were received by the Trust in Philadelphia and that the benefits provided to class Page 4 members as a result of these certifications were paid by the Trust from this location.*fn3

  Since this action is not based solely on diversity of citizenship, the applicable venue statute is 28 U.S.C. § 1391(b). The Trust relies specifically on § 1391(b)(2), which reads:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred
  Under § 1391(b)(2), we must focus on whether "a substantial part of the events or omissions giving rise to the claim" occurred in this district, not on the extent of the defendant's particular contacts with the forum. See Cottman Transmission Svs., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). Under Cottman, "[s]ubstantiality is intended to preserve the element of fairness so that a defendant is not haled into a remote district having no real relationship to the dispute." Id. The substantiality factor has clearly been met. As noted above, Dr. Grouse signed and submitted some 2,500 Green Form certifications which were ultimately forwarded to the Trust in Philadelphia for review and processing. Hundreds of these are alleged to be fraudulent. It was from Philadelphia that the Trust disbursed several million dollars to allegedly undeserving Page 5 claimants based on the Trust's reliance on those certifications. This is not a remote district having no real relationship to the claims in issue. Id.

  In Cottman, our Court of Appeals cited with approval Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992). Bates involved a claim under the Fair Debt Collection Practices Act. Although the plaintiff had incurred a debt while living in the Western District of Pennsylvania, he instituted his action in the Western District of New York. The creditor, which was also located in Pennsylvania, had referred the matter to defendant, a debt collection agency that did not do business in the state of New York. The agency sent plaintiff a letter at his Pennsylvania address, but the Postal Service forwarded it to him at his new address in New York state. The Court of Appeals for the Second Circuit explained that venue was not a matter of contacts but a matter of where events occurred. Since the harm under the Fair Debt Collection Act did not occur until plaintiff received the letter, the court held that its receipt was a substantial event and that venue was proper. If the receipt of the letter as a result of the forwarding procedures of the Postal Service was sufficient to establish venue in Bates, surely the receipt in the Eastern District of Pennsylvania of numerous allegedly false or fraudulent Green Forms signed by Dr. Grouse and the payment by the Trust of several million dollars in benefits from this district predicated on those Green Forms are sufficient events to establish proper venue here. Page 6

  Dr. Grouse has not met her burden of proof to establish that venue is improper. Her motion to dismiss the complaint under Rule 12(b)(3) of the Federal Rules of Civil Procedure will be denied.

  III.

  Dr. Grouse also challenges the sufficiency of the Trust's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint should be dismissed under Rule 12(b)(6) only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). All reasonable inferences are drawn in favor of the non-moving party. See Univ. of Md. at Bait, v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1538 (3d Cir. 1993).

  As an integral part of its motion to dismiss, the defendant contends that the Trust's complaint does not comply with Rule 9(b) of the Federal Rules of Civil Procedure, which provides that the "circumstances constituting fraud . . . shall be stated with particularity." The Court of Appeals of this Circuit has held that "Rule 9(b) requires a plaintiff to plead (1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage." Shapiro v. UJB Fin. Corp., 964 F.2d 272, 284 (3d Page 7 Cir.), cert. denied, 113 S.Ct. 365 (1992). The court is not to focus exclusively on the "particularity" language of Rule 9(b), however, for doing so would be to take "too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules." Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). "Rule 9(b) falls short of requiring every material detail of the fraud such as date, location, and time." Fed.R.Civ.P. 9(b); Rockefeller, 311 F.3d at 216. We must not lose sight of the main purpose of Rule 9(b) which is to put the defendant on notice of the claims against which she must defend. See Christidis v. First Pa. Mortgage Trust, 717 F.2d 96, 99-100 (3d Cir. 1983).

  IV.

  We turn first to the Trust's claims under RICO which provides that "[a]ny person injured in his business or property by reason of a violation of § 1962 . . . may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." 18 U.S.C. § 1964 (c).

  Count I of the complaint alleges a violation of 18 U.S.C. § 1962(c), which states: "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." In order to plead a Page 8 claim under § 1962(c), the Trust must allege that Dr. Grouse "engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activities." Schroeder v. Acceleration Life Ins. Co. of Pa., 972 F.2d 41, 46 (3d Cir. 1992). Dr. Grouse asserts that the Trust has failed to allege a pattern of racketeering activity and that it lacks standing to assert a § 1962(c) claim.

  "Racketeering activity" is defined under § 1961(1)(B) as any act indictable under certain provisions of Title 18 of the United States Code. 18 U.S.C. § 1961 (1)(B). The provisions relevant to the present case are 18 U.S.C. § 1341 and 1343, which make it a crime to engage in mail fraud or wire fraud. Id. A "pattern of racketeering activity" is defined as requiring at least two acts of racketeering activity occurring within a ten-year period. 18 U.S.C. § 1961(5). Integral to a pattern of racketeering activity are: (1) relatedness of the racketeering predicates; and (2) racketeering predicates which amount to continued criminal activity or pose a threat of continued criminal activity. Tabas v. Tabas, 47 F.3d 1280, 1292 (3d Cir.) (en bane), cert. denied, 115 S.Ct. 2269 (1995) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989)).

  Dr. Grouse first argues that the Trust has failed to allege with sufficient particularity mail and wire fraud. Specifically, the defendant contends that the Trust has failed to identify a single mailing or use of the wires. The essential elements of mail or wire fraud under §§ 1341 and 1343 are that: Page 9 (1) there was a scheme to defraud; (2) the defendant participated in the scheme with specific intent to defraud; and (3) the United States mail or wire communications were used in furtherance of the fraudulent scheme. U.S. v. Svme, 276 F.3d 131, 142 n.3 (3d Cir. 2002).

  The Trust has alleged in its complaint that Dr. Grouse willfully signed numerous Green Forms with the knowledge that the information contained on them was not correct, that she and those acting in concert with her used their expertise to capture misleading images, that she falsely certified hundreds of claimants' Green Forms and caused such false Green Forms to be placed in the mails, that she intended to defraud the Trust, that she and others acting at her direction used the telephone and telefax, and that she earned more than $3.2 million for her work on behalf of two of the twenty-five law firms for which she worked. Compl. M 46-49, 60-61, 73, 75. The Trust's pleading clearly meets the requirements of Rule 9(b). It explains in detail to Dr. Grouse the nature and specifics of the underlying claims of mail and wire fraud. See Christidis, 717 F.2d at 99-100.

  Even assuming the Trust meets the particularity requirement of Rule 9(b), Dr. Grouse argues that the predicate acts of mail and wire fraud asserted by the Trust do not constitute a pattern of racketeering activity under RICO because they do not satisfy the relatedness and continuity requirements of the statute. Page 10

  Predicate acts are related if they "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Tabas, 47 F.3d at 1292 (citing H.J. Inc., 492 U.S. at 240). There can be no question that the predicate acts alleged here are related. The Trust has stated that Dr. Grouse intentionally falsified and mailed a large number of Green Forms with the intent of defrauding the Trust. This purported scheme consisted of repeated acts of a substantially similar nature, with the identical purpose of inducing the Trust to pay undeserving claimants.

  Dr. Grouse maintains that even if the Trust has pleaded relatedness, it fails with respect to the continuity requirement. Continuity means a closed period of repeated conduct extending over an extended period of time, which our Court of Appeals has interpreted to mean at least twelve months.*fn4 Tabas, 47 F.3d at 1293. Dr. Grouse argues that the Trust has failed to allege a closed period of continuity because "virtually all" of the claims submitted on behalf of the fifty-five persons listed in Exhibit C to the Complaint (filed under seal), in which racketeering Page 11 activity is alleged, spanned only a three-month period from January to March, 2002. First, the Green Forms of those fifty-five claimants are dated from February 22, 2000 to March 29, 2002. Moreover, Exhibit C is merely alleged to be a representative sample. The complaint alleges that the illegal activity continued for more than three years, from March 22, 2000 until May 6, 2003. A closed period of repeated conduct extending over this period of time is sufficient to satisfy the continuity requirement. See Tabas, 47 F.3d at 1292.

  Dr. Grouse further argues that the Trust has failed to plead continuity because only one victim, the Trust, is identified. The Trust counters that a RICO claim can be sustained with only one victim and that in any event it has alleged multiple victims, that is, those who are class members with legitimate claims for benefits from the Trust. We need not reach this second issue. The number of victims is but one factor to be considered in evaluating whether a pattern of racketeering activity can be established. It is not determinative in itself. The complaint of the Trust is not deficient in this regard. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989); see also Tabas, 47 F.3d at 1292; Barticheck v. Fidelity Union Bank/First Nat'l State, 832 F.2d 36, 39 (3d Cir. 1987).

  As a final matter with regard to Count I, Dr. Grouse maintains that the Trust lacks standing to bring a § 1962(c) claim against her because there is no allegation that she actually submitted the Green Forms to the Trust. Rather, the Page 12 submissions to the Trust were in the discretion of the lawyers and law firms to whom Dr. Grouse transmitted the Green Forms. According to her, any injury she may have caused to the Trust was at most indirect. Under RICO "[a]ny person injured in his business or property by reason of a violation of Section 1962" may sue. 18 U.S.C. § 1964(c). Further, under § 1962(c), it is unlawful "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c) (emphasis added). See also Restatement (Second) of Torts, § 533 (1977).*fn5 An injury caused by any indirect participation of Dr. Grouse in a pattern of racketeering activity is actionable under RICO.

  Accordingly, the motion of the defendant to dismiss the Trust's claim under § 1962(c) of RICO in Count I of the complaint will be denied.

  V.

  Count II of the complaint has been brought under 18 U.S.C. § 1962(d), which provides "[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." 18 U.S.C. § 1962(d). Page 13 According to the complaint, Dr. Grouse conspired to violate § 1962(c). Specifically, it states that in implementing the fraudulent scheme she acted in concert with her sonographers in the operation of the enterprise, Kramer and Grouse. The complaint further alleges that the enterprise itself conspired with Dr. Grouse and her co-conspirators to engage in a multi-year pattern of criminal conduct. Compl. ¶¶ 51, 90, 103. Dr. Grouse contends that Count II cannot survive because it is predicated on an alleged conspiracy among her, her employer Kramer and Grouse, and other fellow employees. She maintains that corporations and their employees cannot conspire.

  We recognize there is disagreement within the Eastern District of Pennsylvania with regard to whether there can be an intracorporate conspiracy under 18 U.S.C. § 1962(d). See Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 204 n.29 (3d Cir. 1990). However, we concur with the reasoning of Judges Rendell and DuBois that a corporate entity cannot conspire with its employees. United Nat'l Ins. Co. v. Equip. Ins. Managers, Civ. A. Nos. 95-0116 & 95-2892, 1995 WL 631709, *6 (E.D. Pa. Oct. 27, 1995); and T.I. Constr. Co., Inc. v. Kiewit E. Co., Civ. A. No. 91-2638, 1992 WL 195425, *10 (E.D. Pa. Aug. 5, 1992). Contra Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., Civ. A. No. 95-1698, 1996 WL 135336, *5 (E.D. Pa. Mar. 19, 1996). Nevertheless, an exception exists where the employees act in pursuit of their own interests and not for the benefit of the corporation. United Nat'l Ins. Co., 1995 WL 631709, *6. Page 14

  According to the complaint, "Dr. Grouse designed and implemented the fraudulent scheme in order to earn sums not capable of being earned through the Enterprise's legitimate practice of medicine." Compl. ¶ 90. After careful review of the allegations of RICO conspiracy, we find the complaint sets forth no allegation that Dr. Crouse was pursuing solely her own interests, rather than the interests of Kramer and Crouse.*fn6 Therefore, we will grant the motion of Dr. Crouse to dismiss Count II of the complaint alleging a conspiracy under § 1962(d) of RICO.

  VI.

  We turn now to the Trust's common law claims. In Count III, the Trust alleges intentional misrepresentation and fraud. Dr. Grouse again asserts Rule 9(b) of the Federal Rules of Civil Procedure, arguing the Trust failed to plead the necessary elements with the specificity required. Dr. Crouse further argues the alleged misrepresentations were not made to the Trust directly and that the Trust has not alleged proximate harm as a result of her conduct.

  To plead fraud under Pennsylvania law, a plaintiff must allege: "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) Page 15 with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance." Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994).

  The complaint speaks to each of these elements. As we stated above, the purpose of Rule 9(b) is to put the defendant on notice of the charge against which she must defend. See Christidis, 717 F.2d at 99-100. Furthermore, Gibbs does not require that the misrepresentation be made directly to the Trust. The pleadings are sufficient to allow the inference, when viewed in the light most favorable to the Trust, that Dr. Grouse made knowingly or recklessly false material representations, upon which she intended the Trust to rely and upon which the Trust did justifiably rely in paying millions of dollars to undeserving claimants. The complaint also adequately pleads that the injury was proximately caused by the reliance. See Gibbs, 647 A.2d at 889. Based on the foregoing, we will deny the motion of Dr. Grouse to dismiss Count III.

  Count IV alleges conspiracy to commit fraud. Dr. Grouse moves to dismiss based on the intracorporate conspiracy doctrine. Again, while employees of a corporation generally cannot conspire, this principle does not apply if the employees are acting in pursuit of their own interests and not for the benefit of the corporation. United Nat'l Ins. Co., 1995 WL 631709, *6. However, as with Count II, the Trust has failed to Page 16 plead the exception to the intraconspiracy doctrine. We will dismiss Count IV.

  The Trust has not responded to Dr. Grouse's motion to dismiss Count V, which is a claim for gross negligence, willful misconduct, and wanton and outrageous conduct. We therefore will grant as unopposed her motion to dismiss this count.

  In Count VI, the Trust has alleged Dr. Grouse acted negligently in failing to ascertain the truth or falsity of the representations she made on claimants' Green Forms submitted to the Trust. Although the Trust labels Count VI a claim for negligence, Dr. Grouse argues, and we agree, that Count VI is a claim for negligent misrepresentation. The elements of a claim for negligent misrepresentation are: "(1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation." Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999). A claim for negligent misrepresentation cannot stand unless it is established that there was a duty owed to the injured party. Id. Thus, unless Dr. Grouse owed a duty to the Trust to provide accurate information, Count VI fails.

  Dr. Grouse was retained by lawyers and law firms acting on behalf of claimants under the Settlement Agreement and not by the Trust itself. Dr. Grouse maintains that because she had no direct relationship with the Trust she owed it no duty. A lack Page 17 of strict privity, however, will not always bar a claim for negligence. See Coleco. Indus., Inc. v. Berman, 423 F. Supp. 275, 310 (E.D. Pa. 1976). Pennsylvania courts have enunciated several factors to be considered in determining whether there exists a duty of care, a determination which is "necessarily rooted in often amorphous public policy considerations . . . (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222-23 (Pa. 2002).

  In addition, Pennsylvania courts have adopted § 552 of the Restatement (Second) of Torts,*fn7 which allows recovery by a third party injured by a negligent misrepresentation of Page 18 information where the supplier of the information knew that the information was intended to go to that specific third party, even where there is no contractual privity between the supplier of information and the injured third party. See David Pflumm Paving & Excavating, Inc. v. Foundation Servs. Co., 816 A.2d 1164, 1168 (Pa. Super. 2003).

  The complaint alleges Dr. Grouse knew that the purpose of completing and submitting Green Forms to the Trust was to obtain monetary awards for claimants, and she knew or had reason to know that negligence on her part in certifying the Green Forms would harm the Trust. Despite this knowledge, according to the complaint, Dr. Grouse negligently attested to hundreds of Green Forms containing material representations upon which she knew the Trust would rely and upon which the Trust did rely in paying millions of dollars to undeserving claimants. Under the law of Pennsylvania, the Trust's pleading of negligent misrepresentation in Count VI is sufficient to survive a motion to dismiss.

  Count VII alleges unjust enrichment. Dr. Grouse submits that the Trust lacks standing to assert this claim against her because the Trust itself conferred no benefit upon her. She was retained and paid by claimants' attorneys or the law firms. She is not alleged to have received any money directly from the Trust as a result of her alleged misrepresentations.

  The elements of unjust enrichment under Pennsylvania law are: (1) "benefits conferred on defendant by plaintiff," (2) Page 19 "appreciation of such benefits by defendant," and (3) "acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." Temple Univ. Hosp., Inc. v. Healthcare Mqt. Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2003). Obviously, if the benefit to Dr. Grouse was conferred upon her by one other than the Trust, the Trust cannot maintain this claim. The complaint does not allege that Dr. Grouse received any remuneration from the Trust itself. However, the Trust alleges that it has, in effect, reimbursed some lawyers and law firms for the amounts they paid to Dr. Grouse. Compl. ¶ 58. The claim for unjust enrichment is cloaked with principles of equity. See Wiernick v. PHH U.S. Mortgage Co., 736 A.2d 616, 622 (Pa. Super. 1999). We must await the further development of the factual record. At this time, we will deny the defendant's motion to dismiss Count VII.

  As a final matter, Dr. Grouse argues that the Trust's tort claims are barred by the Pennsylvania statute of limitations, which is two years for such claims. See 42 Pa. Cons. Stat. Ann. § 5524; Mellev v. Pioneer Bank, 834 A.2d 1191, 1200-01 (Pa. Super. 2003). The limitations bar is an affirmative defense, and it is not properly raised here as part of a Rule 12(b)(6) motion, where the time period alleged in the complaint complies with the limitations period and the affirmative defense does not appear on the face of the pleading. Oshiver v. Levin, Fishbein, Sedan & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994); Page 20 Brown v. Bellaplast Maschinenbau, 104 F.R.D. 585, 587 (E.D. Pa. 1985). Because the complaint specifically alleges Dr. Grouse's misconduct extended from March 22, 2000 at least through May 6, 2003, the filing of the complaint on September 18, 2003 is within any applicable statute of limitations at least to the extent of some of the misconduct. Only at a later point in these proceedings will we be able to determine what, if any, portion of the Trust's tort claims are untimely.

  VII.

  In summary, we will deny the motion of Dr. Grouse to dismiss for improper venue. We will dismiss Counts II, IV, and V of the Trust's complaint for failure to state a claim upon which relief can be granted but will deny the motion to dismiss the remaining counts.


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