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Janus/Bill Gross09 Oct 2014
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Assets soar 500% at Gross-led Janus bond fund
The Unconstrained Bond fund of Janus Capital, run by Pacific Investment Management Co. founder Bill Gross since September 29, attracted $66.4m in net inflows last month, according to data released on Wednesday by Morningstar.
Although the figure includes just two business days that Gross was running the fund, analysts and industry observers said that the vehicle's gain was lacklustre. The fund's assets under management rose by roughly 500%, from about $13m at the end of August to $79.1m, Morningstar estimated. Janus, meanwhile, incurred outflows of $162.1m across all its mutual funds in September, the data provider said.
Separately, Pimco's Total Return fund, which was managed by Gross until his abrupt departure from the Allianz-owned fixed income powerhouse on September 26, saw the $38.2bn Public School & Education Employee Retirement Systems of Missouri redeem $625m of its investments last month.

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1992 Dodge RAM 250 Regular Cab LE 2dr Regular Cab 4WD LB
lovely truck sorry i had to get rid of it.
1992 Dodge RAM 250 Regular Cab LE 2dr Regular Cab LB
This truck has gotten me threw blizzards, snow storms, hail, and slush with out a problem. Its only 2 wheel drive i cnt emagine what the 4 wheel drive version would do. This truck gets the best gas milage i fill up every 2 weeks or so. It's pulled loads that a new dually dodge couldnt do in 4 wheel. This truck has been good to me my family has owned it since it was new, and it became my first truck and i dont ever intend on selling it.
Cummins, 5 speed, old body look
Could do better with the two tone the white stripe on my truck is faded.
I had this truck when we bought it new and I've never looked back. With more than 170,000 miles and no major problems it's the best truck I've ever had. It does great on the trails. I've taken this truck to hell and back and its not failed me yet
Beefy Cummins engine. Long bed to hold everything and good on gas
The radio works sometimes but other than that there's not much that needs improvement
I bought this truck when I was in high school and fell in love with it. Simple to work on. I've put 65 extra hp in her. It sits at 225 hp which is just right for what I do. I will buy another one of these tanks.
4x4, the Cummins for sure. Body style. Fuel mileage 20mpg for a truck that weighs 8500 gvw. The sound of a straght pipe exhaust
Tranny (auto) could have a better cooler, front end could be tighter, paint stinks
I bought this truck used from a rancher to pull a trailer I was pulling with my little Nissan. Long story short, this thing pulls. Rides really rough unloaded! 21 mpg is what I normally average, does not make any difference loaded vs. unloaded. Very roomy cab.
The Cummins!
Wish it rode smoother unloaded, some interior accessories could be stronger and better built. Also in the snow its helpless without chains.
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...and compact. Centres of ossification have fused, which has reduced the number of independent cranial bones in caecilians in comparison with anurans and salamanders; for example, a single bone, the os basale, forms both the floor of the braincase and the posterior part of the skull. Teeth are found on all jaw bones, and a palatal series of teeth appears in addition, medial to the maxillary...


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Supreme Court of Pennsylvania
July 16, 2013
JUDGE ROCHELLE S. FRIEDMAN, JUDGE ALAN M. RUBENSTEIN, IN HER AND HIS OFFICIAL CAPACITY, ROBERT H. RIEFLE, BONITA L. DICARLO AND THOMAS A. BECKLEY, INDIVIDUALLY AND ON BEHALF OF QUALIFIED ELECTORS IN THE COMMONWEALTH OF PENNSYLVANIA, Petitionersv.GOVERNOR THOMAS W. CORBETT JR., COURT ADMINISTRATOR ZYGMONT A. PINES, SECRETARY CAROL T. AICHELE, AND TREASURER ROBERT M. MCCORD, EACH IN THEIR OFFICIAL CAPACITY, Respondents
Plenary Jurisdiction assumed from Commonwealth Court at No. 81 MD 2013
On February 15, 2013, Senior Judge Rochelle S. Friedman, Judge Alan M. Rubenstein, and several individuals alleging a status as qualified electors who voted for Judge Friedman and/or Judge Rubenstein, filed in the Commonwealth Court a Petition for Review in the nature of a Complaint for Declaratory and Equitable Relief (the "Complaint"). Petitioners raised a single cause of action under Article I, Sections 1 and 26 of the Pennsylvania Constitution, claiming that Article V, Section 16(b) of the state charter – which mandates that judges retire on December 31st of the year they turn 70 – should be struck down as contrary to Pennsylvania's Declaration of Rights, that is, Article I of the state Constitution. The jurists contended that Section 16(b) deprives them of their inherent right to be free of age-based discrimination; the electors asserted that the provision denies them their right to elect and retain jurists of their choice and to have those candidates serve to the end of their commissions. Petitioners sought relief in the form of a declaration that the retirement mandate is unconstitutional, as well as an injunction restraining the named Commonwealth officials from enforcing it. Respondents lodged preliminary objections in the nature of a demurrer, and Petitioners answered. The parties filed legal memoranda in support of their respective positions.[1]
On May 10, 2013, having determined the existence of a substantial overlap among the issues raised in this case and two other matters which were pending in this Court – Driscoll v. Corbett, 19 MAP 2013, and Tilson v. Corbett, 20 MAP 2013 – we assumed plenary jurisdiction over the present dispute on our own motion. See 42 Pa.C.S. §726. Shortly thereafter, Petitioners filed an Application for Relief, requesting that we appoint a special master to "receive relevant testimony and evidence and allow Petitioners to create a developed record in support of the claims raised" in their Complaint. Application for Relief, at 12-13. In particular, Petitioners sought to introduce evidence supporting their claims that: mandatory retirement at age 70 is irrational; older Pennsylvania citizens are living and working longer than their 1968 counterparts; the compensation package available to senior judges is less valuable than that provided to commissioned judges; and individuals who voted for the judges in question believed that they were electing the judges to a ten-year term. The Commonwealth opposed the Application for Relief, arguing that the Complaint's allegations raise pure questions of law, and hence, no factual record is necessary.
After these pleadings were filed in our Court, we resolved the Driscoll and Tilson matters jointly, explaining that, in view of the "inalienable and indefeasible right [of the people] to alter . . . their government . . . as they may think proper, " Pa. Const. art. I, §2, "a revision to the organic law of the Commonwealth will only be deemed to violate the constitution that it amends (if at all) where the challenger has shown – clearly, palpably, and plainly – that the amendment is so unreasonable as to be considered 'irrational.'" Driscoll v. Corbett, Pa. __, __, __ A.3d __, __, 2013 WL 2981713, at *12 (June 17, 2013) (quoting Gregory v. Ashcroft, 501 U.S. 452, 471, 111 S.Ct. 2395, 2406 (1991)). We determined that Article V, Section 16(b) did not fall into that category. To the contrary, we agreed with the highest appellate court of a sister state considering a similar constitutional provision, to the effect that:
[T]he amendment at issue . . . not only provides for the retirement of judges, but for their re-appointment as well. The restriction therefore results in an increase of judicial manpower by bringing in younger judges, while retaining the services of willing and able retired judges. It permits the orderly attrition of judges and promotes the advancement of general considerations of judicial efficiency. This insures the fitness of the judiciary as a whole and provides a judicial system of the highest caliber.
Id. at __, __ A.3d at __, 2013 WL 2981713, at *10 (quoting State ex rel. Keefe v. Eyrich, 489 N.E.2d 259, 264 (Ohio 1986); some internal quotation marks and citations omitted). We continued that, "although we have no doubt that many individual judges would be capable of serving with distinction beyond their mandatory retirement date . . . there are overall systemic goals that are rationally related to valid governmental and societal interests." Id. Ultimately we summarized our reasoning as follows:
[T]here is colorable merit to Petiti1oners' position that, theoretically at least, there is some possibility that a constitutional amendment might impinge on inherent, inalienable rights otherwise recognized in the Constitution itself. Nevertheless, we do not believe that the charter's framers regarded an immutable ability to continue in public service as a commissioned judge beyond seventy years of age as being within the scope of the inherent rights of mankind. Rather, in view of the people's indefeasible right to alter their government as they think proper through amending its basic charter, the mandatory retirement provision for judicial officers is subject to deferential, rational-basis review under both equal protection and due process, and it satisfies that standard. Therefore, although certain societal circumstances may have changed since 1968 when the challenged provision was added to the Constitution . . . the proper approach of conforming the Constitution more closely with Petitioners' vision of how experiential changes should be taken into account is to pursue further amendment to the Pennsylvania Constitution.
Id. at __, __ A.3d at __, 2013 WL 2981713, at *13.[2]
In light of the above, any evidence that Petitioners seek to introduce concerning demographic changes that have occurred since 1968 would have no material effect upon the issue at hand. See generally id. at __, __A.3d at __, 2013 WL 2981713, at *10 ("As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant."). Additionally, evidence is unnecessary relative to the claim that the age-70 retirement mandate is irrational, since this claim represents a legal conclusion that we rejected in Driscoll. Furthermore, to the extent the Application may be construed to request an opportunity to submit proofs concerning the understanding or intent of individual voters, [3] these too would be irrelevant, for several reasons.
First, relying on Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), we developed in Driscoll that "judges who reach the constitutional retirement age are not elected to 'regular' terms – i.e., six years in the case of a justice of the peace, or ten years in the case of judges and Supreme Court Justices – but instead, to terms that expire early due to the mandatory retirement provision." Driscoll, __Pa. at __, __ A.3d at __, 2013 WL 2981713, at *11. This is a fact of which voters are deemed to be aware, as explained in Firing. See Firing, 466 Pa. at 569, 353 A.2d at 837 (reasoning that, when the plaintiff ran for judicial office, Article V of the Pennsylvania Constitution "was law, and both he and the electorate had notice that if he was elected his new term would be affected by the retirement provision of Section 16(b)" (emphasis added)). It follows that, when individual electors voted for the Petitioner judges, they voted for them to serve a term that expired on December 31st of the year the judges turned 70.
Insofar as Petitioners seek to make an evidentiary record demonstrating that they were led to believe otherwise, such a record would be incapable of supporting their claim. In the first place, an uninformed, confused, or otherwise irrational vote "is just as much of a vote as a rational one." Koppel v. N.Y. State Bd. of Elections, 8 F.Supp.2d 382, 386 (S.D.N.Y. 1998); cf. Ulland v. Growe, 262 N.W.2d 412, 416 (Minn. 1978) ("We know of no authority which would allow us to treat the votes of any voters, however ill-informed, as if they were somehow inferior [to] more thoughtfully cast ballots."). Second, to the degree Petitioners predicate their claim on an alleged ballot deficiency, the obvious remedy for such a circumstance, if proven, is to ensure that ballots are more informative. An alleged deficiency in how election authorities present a judicial ballot to the public cannot logically have any effect on the constitutionality of the judicial retirement provision.
Finally, although the right of suffrage has been recognized as "fundamental" and "pervasive of other basic civil and political rights, " Bergdoll v. Kane, 557 Pa. 72, 85, 731 A.2d 1261, 1269 (1999) (quoting Moore v. Shanahan, 486 P.2d 506, 511 (Kan. 1971)), electors do not have an inherent, inviolate, pre-constitutional right to vote for judicial candidates whose terms of office are unaffected by a constitutionally-mandated retirement age. There is nothing in Article I of the organic law to suggest such a concept. Article V sets the term of office, either as a "regular" term, Pa. Const. art. V, §15(a), or as a term that is "not regular" because of mandatory age-70 retirement. Firing, 466 Pa. at 566, 353 A.2d at 836; see Driscoll, __Pa. at __, __A.3d at, 2013 WL 2981713, at *11 ("Since the Constitution provides for mandatory retirement at age 70, the Constitution does not itself provide for the election of any judge for any term that extends beyond the age of 70."). An elector may choose whom to vote for, but the elector is not entitled to the judicial services of the elector's preferred candidate beyond that person's term of office. Cf. id. ("[T]his case is about Petitioners' effort to extend their term beyond the term for which they were elected by nullifying operative terms of the Constitution.").
Accordingly, nothing in the Application for Relief convinces us that a factual record could materially aid this Court in ruling on the Commonwealth's demurrer.
Turning to the demurrer itself, we note that many of the contentions advanced by Petitioners are foreclosed by Driscoll. The only two new substantive allegations raised by Petitioners are that: (a) qualified electors who vote for a judge have a constitutionally-protected entitlement to enjoy the "full service" of that judge, absent removal for cause, Complaint, at ¶72; and (b) the 2001 amendment to Article V, Section 16(b) – in which the retirement date was changed from the day the judge attains the age of 70 to December 31st of the year in which the judge attains that age – is irrational and unconstitutionally discriminatory because it results in a retirement age based solely on the contingency of the judge's birthday, see Complaint, at ¶40; accord Application for Relief, at ¶¶12, 16.[4] In discussing the Application for Relief, we have already rejected the first of these contentions.
The second pertains to the 2001 change in retirement date from the judge's 70thbirthday, to December 31st of the year the judge turns 70. Although this would appear to reduce the complained-of harm by extending the judge's term of office, Petitioners nonetheless argue that it compounds the irrationality of the 1968 amendment. See Complaint, at ¶¶35, 40. As such a contention constitutes an opinion or a conclusion of law, it need not be accepted for purposes of ruling on the demurrer. See, e.g., Crozer Chester Med. Ctr. v. Dep't of Labor & Indus., 610 Pa. 459, 466, 22 A.3d 189, 194 (2011).
As in Driscoll – and, again, assuming, arguendo, that a state constitutional amendment can be declared invalid as substantively contrary to the constitution it amends – we must consider whether the classification approved by the voters in 2001 is "so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the people's actions were irrational." Driscoll, __Pa. at __, __ A.3d at __, 2013 WL 2981713, at *9 (quoting Gregory, 501 U.S. at 471, 111 S.Ct. at 2406). We do not believe that a December 31st retirement date is irrational. To the contrary, it serves multiple rational purposes related to the public interest.
First, it improves the orderly succession of judges or justices by standardizing the retirement date of an outgoing judge so that it occurs at the end of the calendar year. This enhances predictability and aligns judicial terms with the terms of other governmental officials that end on or about the last day of the year. Secondly, delaying retirement until the end of the year reduces – or in the case of odd-year retirements, eliminates – judicial vacancies that previously arose when a jurist was forced to retire in the middle of the year. Such reduction or elimination serves to lengthen the term of an elected judge while shortening the term of a judge who is appointed to fill a vacancy. See Barbieri v. Shapp, 476 Pa. 513, 520, 383 A.2d 218, 222 (1978) ("[W]henever possible, election is the constitutionally prescribed method for filling judgeships in Pennsylvania. The appointment procedure of [Article V, S]ection 13(b) is a stopgap to fill seats that unexpectedly fall vacant."); Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976) (same). At the same time, Section 16(b)'s discriminatory effect is minimal, in that the variance in actual retirement ages as between judges is always less than one year. That being the case, the standardization to end-of-year retirement readily passes scrutiny under the very lenient standard set forth in Driscoll, applicable to constitutional amendments approved by the electorate of Pennsylvania.
For the reasons supplied above, Petitioners' Application for Relief is denied, the Commonwealth's preliminary objections in the nature of a demurrer are sustained, and the Petition for Review is dismissed with prejudice.
I agree that the gravamen of the complaint here is controlled by the core constitutional holding in Driscoll v. Corbett, A.3d (Pa. 2013), and that further proceedings are pointless. However, this is not to say that I have no reservations, given the arguments presented, or that I believe that the constitutional scheme here is a particularly rational one. There obviously is discrimination in the constitutional provision at issue; it is based squarely on age; and the 2001 amendment allowing service to the end of the calendar year, rather than, for example, until the next election cycle, is a half-solution to the disruption caused by the age restriction.
If the judicial age restriction at issue here and in Driscoll represented mere legislation, I have little doubt that it would be unconstitutional. Limits upon service can be expressed in multiple ways (e.g., term limits, the length of terms); this one is premised solely upon (older) age. A particularly young judge could serve for four decades; or an attorney could win election for the first time at age 69, turn 70 in the January in which he assumes office, and then "be retired." The line is drawn solely upon age – no citizen past 70 need apply, no matter how well-qualified. Classifications based upon older age are sensitive and potentially invidious ones. But this age-based discrimination, particular to the judiciary, is not mere legislation – it is found in the Pennsylvania Constitution itself, and the constitutional issues are controlled by Driscoll and, more globally, Gregory v. Ashcroft, 501 U.S. 452 (1991).
Notably, the age limitation set in place after the 1967-68 Constitutional Convention was not the subject of a specific, narrow question presented to the people for approval (in contrast to the provision concerning the manner of selecting judges, see infra n.1; or the narrow 2001 amendment, which arose from the actions of the General Assembly, and once approved by the voters extended judicial service to the end of the year in which a jurist turns 70). Rather, it was included in a mass of wide-ranging reforms regarding a new Article V about the judiciary. Driscoll, A.3d at, *1 (noting that Article V was "completely rewritten" during the Convention).
Here is how the drafters described to the people the measure for ratification of these reforms at the April 23, 1968 Presidential Primary Election: "Shall Proposal 7 on the JUDICIARY, adopted by the Constitutional Convention, establishing a unified judicial system, providing directly, or through Supreme Court rules, for the qualifications, selection, tenure, removal, discipline and retirement of, and prohibiting certain activities by justices, judges, and justices of the peace, and related matters, be approved?" Constitutional Proposals Adopted by the Convention, The Pennsylvania Constitutional Convention 1967-68, 7. The subject matter covered by this one-sentence ballot question, which includes unspecified "related matters, " actually engendered twenty-five single-spaced, small-font pages of additional explication in a separate "Summary and Explanation" offered "for the convenience of the people." Id. at 26-50. Even this Summary and Explanation, which was apparently intended to be transmitted to the Pennsylvania electorate in some way in conjunction with the election, was not to be "considered an official interpretation" of the proposed changes, which included, inter alia, the creation and composition of the unified judicial system and the courts embodied therein, the powers and duties of those courts, how judges would be elected and vacancies filled, the creation of a Judicial Inquiry and Review Board, rules for judicial candidates, and special considerations for the judicial districts of Philadelphia and Pittsburgh. Id.[1]
The Pennsylvania Constitution may be amended in two ways: via Convention, or via the procedure originating with the General Assembly specified in Article XI, Section 1. Stander v. Kelley, 250 A.2d 474, 479 (Pa. 1969); see also Harry L. Witte, Amending the Pennsylvania Constitution, The Pennsylvania Constitution: A Treatise on Rights and Liberties, 847 (Ken Gormley ed., 2004) ("Pennsylvania has two recognized methods of proposing amendments, the legislative proposal mechanism, which is detailed in Article XI of the Constitution, and the constitutional convention, which enjoys no textual sanction."). The scope of amendments by Convention can be as broad as the authorization of the Convention. But, the Article XI amendment procedure has a significant limitation, similar to constitutional limitations governing most legislation, [2] to ensure that discrete subjects are subject to separate, meaningful vote: " . . . When two or more amendments shall be submitted [to the qualified electors of the State] they shall be voted upon separately." Pa. Const. art. XI, § 1. If the complete rewriting of Article V had been accomplished via the Article XI process, it obviously would have been subject to a viable constitutional challenge. See Bergdoll v. Kane, 731 A.2d 1261 (Pa. 1999) (ballot question encompassing amendments to both Pa. Const. art. I, § 9 and art. V, § 10(c), without allowing electorate to vote separately upon each of the amendments, held to violate art. XI, § 1); see also Pennsylvania Prison Soc. v. Commonwealth, 776 A.2d 971 (Pa. 2001) (although Court was divided on whether multiple amendments were at issue, and proper test for measuring whether multiple amendments were at issue, no disagreement concerning the limiting effect of Article XI amendment process). Notably, the Article V provision regarding the method of selection of statewide judges and justices was presented in a separate election. See supra n.1.
But, the complicated package of comprehensive amendments to Article V that included the brand new mandatory judicial retirement age was presented to the voters in 1968 in a package of reforms via the Convention procedure. Voters were faced with a yes or no vote on the whole package. It is fictional to say that voters who approved of such a massive constitutional revision affirmatively embraced any one measure within it, just as it would be fictional to say that all of the men eligible to vote on the original U.S. Constitution who voted in favor of it affirmatively embraced provisions respecting the perpetuation of slavery and weighting of federal power in favor of slave states via the "three-fifths compromise." [3] But, this is the way broad Constitution-making via Convention (as opposed to specific, single-subject adjustments arising via political determinations by the General Assembly) works: it involves precisely such difficult decisions, and voters have to decide whether or not to take the bad with the good.
The concern with the 2001 amendment, in my view, is not so much with its constitutionality, but with its practicality. The 1968 amendments specified that judicial elections occur in municipal election years, i.e., in odd-numbered years. Pa. Const. art. VII, § 3. Judges can "age out" at any time within the two years between elections, meaning that judges born in even-numbered years will be retired a year before their seat can be filled. This does not present a difficulty in the lower courts, where senior judges can fill the void; and indeed, many judges who reach mandatory retirement age immediately enter into senior service. On the Supreme Court, however, extending a term only to the end of the year a Justice turns seventy leads to a disruptive one-year vacancy for those Justices born in even-numbered years; notably, four of the six Justices currently serving on the Court were born in an even-numbered year. The General Assembly, which apparently is considering recommending a constitutional adjustment to address the age discrimination feature of Article V, may want to keep this additional fact in mind.
Sensitive as I am to how the health and mental acuity of mature Americans have improved since 1968, and sensitive as I am to the concerns of the distinguished jurists who have served this Commonwealth well and who have brought these challenges, I do not view the existing provisions subject to challenge, problematically discriminatory as they are, to be unconstitutional under our charter, and as for the federal question, Gregory is the law of the land, and this Court is duty-bound to enforce it.
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Deliciously Different Chicken Pie
Total Time
Prep 15 mins
Cook 20 mins
This chicken pie is deliciously different, but so easy to put together. Most ingrdients in our pantry already.(Hopefully) It came from a Good Seasons Dressing Box.
Ingredients Nutrition
- 12 ounces cream cheese, cubed
- 1⁄2 cup chicken broth
- 3 cups cooked chicken
- 2 -10 ounces frozen mixed vegetables, thawed
- 1 (19 g) packetgood seasons Italian salad dressing mix
- 1 refrigerated pie crust
- Preheat oven to 425°F.
- Remove pie crust from package and bring to room temperature for easier handling, as instructed on box.
- Cook broth and cream cheese in large saucepan until melted and smooth. Use a whisk for stirring. Stir in Italian Dressing mix,chicken and vegetables. Spoon into a 9-inch pie plate. top with the pie crust. Seal and flute edge. Cut several slits for venting.Place on a baking sheet and bake for 20-25 minutes until golden brown.


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youve all taken this post too far
youve all taken this post too far
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AIRFIX Triumph Herald A55201AIRFIX
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DescriptionThe Triumph Herald, introduced in 1959, was looked upon as being quite a radical design. Its tilt forward bonnet and unusual styling, along with all-round independent suspension were a breakaway from the traditional design theories of the era. The original engine was a four cylinder; single carburettor 948cc unit which was enlarged to 1147cc with twin carburettors for certain models. Other body styles available through the production years were Coupe, Convertible and Estate. Airfix Starter Sets are ideal for beginners. Medium Starter Sets are a little more challenging to build than the Small Starter Set range, with more parts. WARNING! For children over 8 years of age only. For use under adult supervision . Poly Cement Adhesive. Product contains butyl acetate which may be harmful if misused. Read cautions on individual container or insert carefully. KEEP OUT OF REACH OF CHILDREN. CAUTION! Read the instructions before use, follow them and keep them for reference. Unassembled, plastic model kit. Not suitable for children under 36 months due to small parts, contains functional sharp edges and/or points. The packaging for them includes a plastic bag. To avoid danger of suffocation keep all plastic bags away from babies and small children. The contents of this set are of mixed origin. Colours and contents may vary from those illustrated. Contains preservatives: Mixture, containing 5-Chloro-2-methyl-2H-isothiazol-3-one and 2-methyl-2H-isothiazol-3-one (3:1) & 2 phenoxyethanol. Retain these details and the address for future reference.
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ContentsGlue two brushes six acrylic paints
Warranty & Refunds12 Month Waranty - proof of purchase required
Product Details
- barcode: 5014429552014
- product type: toys
- model: A55201
- age suitability: From 8 years
- packaged dimensions: 280.0 x 233.0 x 46.0 mm (11¼ x 9¼ x 2 inches)
- Number Of Packs: 1
Delivery Information
- Saver Delivery: Yes
- 1st Class Delivery: Yes
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Thread: Need Reviewers! - Read
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My Dad's Ham Salad
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This turned out to be a nice use of leftover cooked ham. I've never been a real fan of ham salad but made this for my wife to go with a green salad for her lunch. There was some left over so I had it with crackers by itself for my lunch and it was very nice. Most ham salad recipes calls for pickle relish which my wife hates so when I saw this with dill pickles that she loves I thought I'd give it a try. I cut the recipe by half and actually added just a little too much mustard to my taste but overall it turned out well. She liked it a lot and I'll be adding it to my recipe file for future use. Thanks for posting...


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United States District Court, S.D. California
June 23, 2015
WAHOO INTERNATIONAL, INC., Plaintiff,v.PHIX DOCTOR, INC., a Florida Corporation; and DOES 1-10, Defendants. PHIX DOCTOR, INC., a Florida Corporation and ANTHONY GOWER, an individual, Counter-Plaintiffs,v.WAHOO INTERNATIONAL, INC., a California Corporation; GARY FISHER, an individual; MARK CAPPA, an individual; and STAY COVERED, INC., and DOES 1-10, Counter-Defendants.
ORDER GRANTING COUNTERDEFENDANTS' MOTION TO DISMISS AMENDED COUNTERCLAIM [Dkt. No. 107.]
GONZALO P. CURIEL, District Judge.
Before the Court is Counterdefendants Wahoo International, Inc. ("Wahoo") and Gary Fisher's ("Fisher") motion to dismiss amended counterclaim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Dkt. No. 107.) On May 15, 2015, Counterdefendants Mark Cappa and Stay Covered, Inc.'s ("Stay Covered") filed a notice of joinder to Wahoo and Fisher's motion to dismiss. (Dkt. No. 111.) On May 29, 2015, Counterclaimants Phix Doctor, Inc. and Anthony Gowen filed an opposition. (Dkt. No. 116.) Counterdefendants filed their replies. (Dkt. Nos. 117, 118.) Based on the reasoning below, the Court GRANTS Counterdefendants' motion to dismiss the amended counterclaim without leave to amend.
Procedural Background
On December 19, 2014, Defendants and Counterclaimants Phix Doctor, Inc. ("Phix Doctor") and Anthony Gowen ("Gowen") filed a counterclaim against Plaintiff and Counterdefendants Wahoo International, Inc., ("Wahoo"), Gary Fisher ("Fisher"), and Mark Cappa ("Cappa") for antitrust violations pursuant to 15 U.S.C. § 2, and wire fraud pursuant to the Racketeer Influenced and Corrupt Organization Act ("RICO") statute, 18 U.S.C. § 1343. (Dkt. No. 81 at 11.)
On February 19, 2015, the Court granted Counterdefendants' motion to dismiss with leave to amend. (Dkt. No. 101.) The Court concluded that the counterclaim failed to allege a claim under the Sherman Act and wire fraud under RICO. (Id.) On March 6, 2015, Counterclaimants filed an amended counterclaim against Wahoo and Fisher, and a third party complaint[1] against Stay Covered Inc. and its principal agent, Mark Cappa and added ten additional causes of action as to all Counterdefendants. (Dkt. No. 102.)
On May 1, 2015, Counterdefendants Fisher and Wahoo filed a motion to dismiss the amended counterclaim. (Dkt. No. 107.) On May 15, 2015, Mark Cappa and Stay Covered filed a notice of joinder in the motion. (Dkt. No. 111.) On May 29, 2015, Counterclaimants filed an opposition. (Dkt. No. 116.) On June 5, 2015, Counterdefendants filed their replies. (Dkt. Nos. 117, 118.)
Factual Background
Phix Doctor is a Florida corporation which sells resin for surfboards and other water related product repair. (Dkt. No. 102, Counterclaim ¶ 2.) Until August 2014, Phix Doctor was using the mark "Dura-Rezn" and prior to that "Dura-Rez." (Id.) Gowen is the President and main shareholder of Phix Doctor. (Id. ¶ 3.) Wahoo is a California corporation and a competitor in the resin industry with Phix Doctor. (Id. ¶ 4.) It conducts business in California and Florida. (Id.) Counterdefendant Fisher is the President of Wahoo. (Id. ¶ 5.) Mark Cappa is an agent of Phix Doctor and directly interfered with Phix Doctor's business relations. (Id. ¶ 6.) Stay Covered, Inc. is a California corporation which also contracts with Wahoo, and Cappa is its principal agent. (Id. ¶ 7.)
According to the amended counterclaim, the term "rez" has been trademarked in the resin industry since before the 1950s.[2] (Id. ¶ 10.) The term "rez" is a common and generic term for "resin." (Id.) In the 1980s, Sunrez was selling resin products to Wahoo and has overlapping business with Wahoo. (Id. ¶ 11.) One of Wahoo's product is a resin produced for repairing damage to fiberglass frames such as boats, surfboards, and pools. (Id. ¶ 12.) Wahoo trademarked "SOLAREZ" for its resin repair product and directly targets Florida and the rest of the country. (Id.) Phix Doctor also produced resin under the trademark name "Dura Rez" and was sued in the instant lawsuit for infringing "SOLAREZ." (Id. ¶ 13.) Wahoo claims it has a trademark on the suffix "rez" but it only has three registered trademarks, "Wahoo", "Bullyboard" and "SOLAREZ." (Id.) Moreover, there are other companies that also manufacture resin with the "rez" suffix which predate Wahoo's trademark. (Id.)
As Phix Doctor obtained more market share, Wahoo took notice and decided to hurt competition and its competitor. (Id. ¶ 14.) In December 2012, Wahoo directed its attorneys to send a cease and desist letter to Phix Doctor claiming it had ownership of a family of marks, "rez", and that "Dura-Rez" was infringing its mark. (Id. ¶ 15.)
After discussions with Gary Fisher, he agreed that "Dura-Rezn" was an acceptable change to the mark to satisfy its claim of infringement. (Id. ¶ 16.) Phix Doctor relied on the agreement and statements from Fisher and spent significant resources to change its mark and branding. (Id. ¶¶ 16, 17.) The communications with Fisher were done via interstate channels of communications and/or U.S. mail. (Id. ¶ 16.) Fisher falsely represented that he would not pursue the infringement action when it made the representations to Phix Doctor regarding "Dura-Rezn." (Id. ¶ 17.) After Phix Doctor agreed to change its mark to "Dura-Rezn", Wahoo still insisted that its mark was being infringed upon. (Id. ¶ 18.)
Wahoo filed this case alleging trademark infringement, trademark dilution and other state law claims against Phix Doctor in June 2013 when it knew it had no reasonable belief in the allegations in the complaint or any reasonable belief "rez" was owned by Wahoo. (Id. ¶ 20.) The amended counterclaim alleges that Wahoo is a "trademark troll" by falsely claiming to have an exclusive right to the mark "rez" and bringing sham litigation against other competitors and attempting to extract a quick settlement and to hurt competition. (Id. ¶¶ 20-22.) Wahoo has used its position as the more established and senior producer of resin to prevent new competition from entering the market or thwarting new competition. (Id. ¶ 23.)
Moreover, since at least 2010, Wahoo was not using proper shipping labels as required when shipping hazardous material via U.S. mail. (Id. ¶ 24.) As a result, Wahoo paid less in shipping costs which gave it a competitive advantage in shipping resin products over its competitors that were properly labeling its products. (Id.) Furthermore, Wahoo is attempting to harm its competitor by filing this lawsuit, attempting to monopolize the mark, "rez", and harm Phix Doctor by having it expend money on legal fees. (Id. ¶ 25.) Counterclaimants assert that Wahoo's sham litigation and improper shipping allows it an anti-competitive advantage over competitors and impedes innovation. (Id. ¶ 27.)
Wahoo engaged in anti-competitive tactics when it, in July 2014, under the direction of Fisher, began sending cease and desist letters to distributors and retailers of Phix Doctor via interstate channels of communication such as facsimile, emails and letters that contained false allegations regarding its ownership of the "rez" trademark. (Id. ¶ 28.) Counterdefendants knew the letters were false, baseless and intended to disrupt the business relationships of Phix Doctor. (Id. ¶ 34.) When Phix Doctor informed Wahoo that it sold its rights to "Dura Rez" and "Dura-Rezn" to Sunrez, Inc., Wahoo has taken no steps to assert its trademark on Sunrez because its goal was directed at smaller competitors, such as Phix Doctor. (Id. ¶ 30.)
Phix Doctor[3] also believes that false information, through cease and desist letters, regarding ownership of the trademark was communicated to third party relationships of Phix Doctor but Wahoo did not intend to pursue litigation with the third parties. (Id. ¶ 31.) Wahoo intended to defraud third parties to end their business relationships with Phix Doctor. (Id. ¶ 32.) As a result, various independent sales agents of Phix Doctor and Wahoo were induced to stop selling Phix Doctor's products or sell more Wahoo's resin products. (Id. ¶ 33.)
In July 2014, Mark Cappa, an officer of Stay Covered, and one of Phix Doctor's representatives, told customers and distributors of Phix Doctor that they faced liability for selling its products. (Id. ¶ 35.) Cappa knew or was negligent in knowing the allegations were false. (Id.) Cappa was informed of the false information and instructed to participate in Wahoo's scheme and believed his company would profit by continuing to disseminate false information to its customers, which bought products from Wahoo and Phix Doctor. (Id. ¶ 37.) Counterdefendants were aware of the contractual and business relationship when they interfered and knowingly or falsely claims these third parties faced liability if they bought or sold Phix Doctor's products. (Id. ¶ 38.) As a result, various retailers and distributors refused to buy Phix Doctor's products due to threats and false statements. (Id. ¶ 39.) Phix Doctor was coerced into changing its trademark from "Dura-Rezn" to "Dura-Resin" to calm the fears of its customers. (Id. ¶ 39.)
Counterclaimants allege the following causes of action: (1) antitrust/Sherman Act § 2; (2) wire fraud under 18 U.S.C. § 1343; (3) mail fraud under 18 U.S.C. § 1341; (4) RICO under 18 U.S.C. § 1961 et seq.; (5) unfair business practices pursuant to California Business and Profession code sections 17200 et seq.; (6)&(7)[4] intentional interference with contractual relations under California and Florida law; (8) intentional interference with prospective economic relations under California and Florida law; (9) negligent interference with prospective economic advantage under California and Florida law; (10) defamation under Florida law; (11) fraud under Florida law; and (12) deceptive and unfair practices act under Florida law. (Dkt. No. 102 at 17-24.)
A. Legal Standard on Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) ("Rule") permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief, " and "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint, and draws all reasonable inferences in favor of the plaintiff. al- Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).
Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
B. Legal Standard Under Federal Rule of Civil Procedure 9(b)
Federal Rule of Civil Procedure 9(b) provides that "[i]n alleging fraud..., a party must state with particularity the circumstances constituting fraud, " while "[m]alice, intent, knowledge, and other conditions of a person's mind may be averred generally." Fed.R.Civ.P. 9(b). "Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct... so that they can defend against the charge and not just deny that they have done anything wrong." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (internal quotation marks omitted). "Any averments which do not meet that standard should be disregarded, ' or stripped' from the claim for failure to satisfy Rule 9(b)." Id . Accordingly, "[t]o avoid dismissal for inadequacy under Rule 9(b), [the] complaint would need to state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (internal quotation marks omitted).
C. Sherman Act, 15 U.S.C. § 2
Counterdefendants first argue that Counterclaimants have failed to correct the deficiency noted by the Court in the prior complaint by failing to allege that Wahoo possesses monopoly power in the relevant market. In the Court's previous order on the motion to dismiss the counterclaim, the Court held that "Phix Doctor failed to allege that Wahoo possessed monopoly power in the relevant market, which is one of the elements to state a monopolization claim under Section 2 of the Sherman Act. The relevant market is key to determining whether competition in the relevant product market has been negatively affected." (Dkt. No. 101 at 6.) Counterclaimants do not address this argument in their opposition. Instead, they state the elements of a claim of attempt to monopolize, which appear to not require the assertion of monopoly power in the relevant market.[5] (Dkt. No. 116 at 4.)
Section 2 of the Sherman Act makes it illegal to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations...." 15 U.S.C. § 2. To state a monopolization claim under § 2 of the Sherman Act, a plaintiff must sufficiently allege that a defendant "(1) possessed monopoly power in the relevant market, (2) wilfully acquired or maintained that power through exclusionary conduct and (3) caused antitrust injury." MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124, 1130 (9th Cir. 2004).
To demonstrate attempted monopolization a plaintiff must prove "(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power." Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 893 (9th Cir. 2008) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (internal quotations omitted)). However, in order to demonstrate probability of achieving monopoly power there must be a showing of the "relevant product and geographic markets and the defendant's economic power in that market." Spectrum Sports, Inc., 506 U.S. at 459.
While "defendant's power in the relevant market is not listed as an essential element of an attempt claim, such proof is relevant and often critical." Thurman Indus., Inc. v. Pay N Pak Stores, Inc., 875 F.2d 1369, 1378 (9th Cir. 1989); M.A.P. Oil Co., Inc. v. Texaco, Inc., 691 F.2d 1303, 1309 (9th Cir. 1982) ("failure to define the relevant market was fatal to plaintiffs' attempt claim."); Verizon Commc'ns Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U.S. 398, 407 (2004) (the offense of monopolization or attempt to monopolize requires possession of monopoly power in the relevant market); InfoStream Group, Inc. v. PayPal, Inc., No. C 12-748 SI, 2012 WL 3731517 (N.D. Cal. Aug. 28, 2012) ("Plaintiffs have wholly failed to allege any specific facts with respect to the market power of their competitors, despite the fact that "demonstrating the dangerous probability of monopolization in an attempt case [] requires inquiry into the relevant product and geographic market and the defendant's economic power in that market.")
Monopoly power is "the power to control prices or exclude competition." United States v. Grinnell Corp., 384 U.S. 563, 571 (1966) (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956)). Under § 2, monopoly claims require a showing of monopoly power which is also commonly referred to as market power. See Cost Management Services, 99 F.3d 937, 950 n. 15 (1996) ("The terms market power' and monopoly power' are used interchangeably herein.").
Relevant market is determined by a "relevant product market and a relevant geographic market." Los Angeles Mem'l Coliseum Comm'n v. NFL, 726 F.2d 1381, 1392 (9th Cir. 1984). Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 42-43 (2006). "The relevant product market identifies the products or services that compete with each other, and the relevant geographic market identifies the area where the competition in the relevant product market takes place." Sidibe v. Health, 51 F.Supp. 3d 870, 883 (N.D. Cal. 2014) (citing Los Angeles Mem'l Coliseum Comm'n, 726 F.2d at 1392).
While Counterclaimants assert Counterdefendants succeeded in their attempt to grow its monopoly power over the "resin, fiberglass, and particularly surfboard repair market", (Dkt. No. 102, Am Counterclaim ¶ 48), and generally assert that Wahoo is the "more established and senior producer of resin" such conclusory allegations without supporting facts are not sufficient to state a claim for attempted monopolization. Counterclaimants do not assert that Counterdefendants possessed monopoly power in the relevant market. In fact, the assertions are contradictory. As Wahoo points out, the amended counterclaim alleges that "[b]oth Wahoo and Phix Doctor are relatively small resin producers and competitors" which does not support monopoly power. (Dkt. No. 102, Am. Counterclaim ¶ 14.) While Counterclaimants assert that Wahoo attempted to gain market share, there is no assertion of market power. (Id. ¶ 33.) Moreover, they allege that Wahoo took no steps to assert its monopoly power over Sunrez and did not pursue litigation with third parties for selling allegedly infringing products. (Id. ¶¶ 30, 31.) These facts do not demonstrate anti-competitive conduct. Thus, the Court concludes that the amended counterclaim fails to state a claim for attempted monopolization under § 2 of the Sherman Act. Based on Counterclaimant's failure to allege monopoly power in the relevant market, the Court need not address Counterdefendants' other arguments.
Counterdefendants seek dismissal with prejudice because Counterclaimants may not amend the complaint to remove the allegation that Wahoo is a "relatively small resin producers" in order to allow amendment. A complaint can be amended to cure deficiencies in the complaint but it must be consistent with the challenge pleading and must not contradict the allegations in the original complaint. See Johnson v. Lucent Techs, Inc., 653 F.3d 1000, 1012 (9th Cir. 2011) (citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) (amended complaint may only allege "other facts consistent with the challenged pleading."). Here, since the amended counterclaim already alleges that Wahoo is a relatively small resin producer, it cannot allege a claim for attempted monopolization. Thus, the Court GRANTS Counterdefendants' motion to dismiss on the § 2 Sherman Act cause of action with prejudice.
D. Wire Fraud, 18 U.S.C. § 1343, and Mail Fraud, 18 U.S.C. § 1341
In the amended counterclaim, Counterclaimants assert the predicate act of mail and wire fraud, 18 U.S.C. §§ 1341, 1343. The mail and wire fraud statutes contain three elements: (A) the formation of a scheme to defraud, (B) the use of the mails or wires in furtherance of that scheme, and (C) the specific intent to defraud. Ecletic Props. East, LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (citing Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1399 (9th Cir. 1986)). Rule 9(b) applies to wire and mail fraud. Odom v. Microsoft Corp., 486 F.3d 541, 554 (9th Cir. 2007) "The only aspects of wire [or mail] fraud that require particularized allegations are the factual circumstances of the fraud itself." Id . (the formation of a scheme to defraud, and specific intent to defraud requires a showing of the defendants' states of mind so general allegations are sufficient).
Wahoo alleges that Phix Doctor has not changed its allegations which the Court previously found insufficient because it did not allege the time, place and parties involved. (Dkt. No. 101 at 11.) In opposition, Phix Doctor alleges that Wahoo's mailing of documents containing knowingly false statement is sufficient to establish mail fraud. (Dkt. No. 116 at 7.) The false statements made by Wahoo are that "rez' was protected, "Dura-Rez" was infringed, Wahoo would accept a modification of "Dura-Rezn" and third parties were liable for infringement or potentially liable. (Id. at 9.) Phix Doctor further contends that Wahoo's conduct with representatives and attorneys to threaten Phix Doctor with false statement and statements made to its customers are actionable. (Id.)
First, Wahoo alleges that the allegation that "Fisher agreed that Dura-Rezn' was an acceptable change to the mark to satisfy its frivolous claim of infringement" and "falsely represented it would not pursue this anticompetitive infringement action when it made the representation to Phix Doctor regarding Dura-Rezn" was not amended and cannot state a claim. (Dkt. No. 102, Am. Counterclaim ¶¶ 16, 17.) The Court previously concluded that Phix Doctor "failed to allege the time, place and the parties involved concerning the alleged discussion." While Phix Doctor amended the claim by adding "US mail" which was omitted from the original counterclaim, the remaining claim as to the facts has not changed. Therefore, Phix Doctor has still failed to allege the time, place and the parties involved concerning the alleged discussion.[6]
Accordingly, this allegation fails to comply with Rule 9(b).
Second, Wahoo contends that the allegation as to Mark Cappa, in July 2014, when he allegedly told customers and distributors of Phix Doctor that they faced liability for selling its products and he knew or was negligent in knowing the allegations were false, also was not amended and does not sufficiently plead wire and mail fraud under Rule 9(b). (Id. ¶ 35.) Despite the Court's prior ruling and reason why the Court granted the motion to dismiss, the amended counterclaim fails to amend this assertion by alleging which customers and distributors of Phix Doctor received such communication and the method of communication. Therefore, this assertion again fails to comply with Rule 9(b).
Next, Phix Doctor also asserts that under the direction of Fisher, Wahoo began sending cease and desist letters via facsimile, emails and letters by U.S. mail to Phix Doctor's distributors and retailers in July 2014 that contained knowingly false allegation as to the trademark ownership. (Id. ¶ 28.) This allegation does not comply with Rule 9(b) because it does not state the place and identities of the parties to the misrepresentation. See Edwards, 356 F.3d at 1066 (complaint "would need to state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.")
Lastly, Phix Doctor maintains that Phix Doctor also sent communication to third party relationships of various independent sale agents of Phix Doctor. (Id. ¶¶ 31, 32.) The allegation fails to allege the use of wire or mail, and does not allege the time, and the identities of the parties. Therefore, it does not have the requisite specificity required by Rule 9(b) to allege a fraud. See Edwards, 356 F.3d at 1066.
In sum, the Court concludes that the amended counterclaim fails to allege a claim for wire and mail fraud, and the Court GRANTS counterdefendants' motion to dismiss these causes of action.
The elements of a RICO cause of action requires that a defendant "must participate in (1) the conduct of (2) an enterprise that affects interstate commerce (3) through a pattern (4) of racketeering activity or collection of unlawful debt." Eclectic Props., East, LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014); see 18 U.S.C. § 1962(c). A "pattern of racketeering activity" requires at least two predicate acts. Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008); see 18 U.S.C. § 1961(5). The amended counterclaim asserts two predicate acts of wire fraud and mail fraud, 18 U.S.C. §§ 1341, 1343. Since Counterclaimants failed to properly allege the predicate acts of mail and wire fraud, the amended counterclaim fails to state a claim for relief under RICO. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir. 2004) (because plaintiff failed to properly allege predicate acts of mail or wire fraud, the complaint does not state any claim for relief under RICO).
F. UCL Claim
Counterdefendants argue that this claim should be dismissed. Counterclaimants assert that their UCL claim is based on the "unlawful" prong of the UCL and sufficiently allege a cause of action. (Dkt. No. 116 at 11.)
The UCL prohibits "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. "Each of these three adjectives captures a separate and distinct theory of liability." Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (quotation marks omitted). Section 17200 "borrows" violations of other laws and treats them as unlawful practices independently actionable under section 17200. Id . Counterclaimants' UCL claim is based on the "acts of shipping improperly[7] and acts to interfere with Phix Doctor business relationships with false statements and bad faith threats...." (Dkt. No. 102, Am. Counterclaim ¶ 70.) These allegations are based on § 2 of the Sherman Act and the RICO causes of action.
Since the Court granted Counterdefendants' motion to dismiss as to the Sherman Act, and wire/mail fraud, and RICO causes of action, the Court also GRANTS their motion to dismiss on the unfair business practices pursuant to California Business & Professions Code section 17200.
G. Remaining Causes of Action
Counterclaimants move to dismiss on the remaining causes of action for (6), (7) intentional interference with contractual relations under California and Florida law; (8) intentional interference with prospective economic relations under California and Florida law; (9) negligent interference with prospective economic advantage under California and Florida law; (10) defamation under Florida law; (11) fraud under Florida law; and (12) deceptive and unfair practices act under Florida law. In their opposition, Counterclaimants failed to oppose counterdefendants' motion to dismiss based on these causes of action.
Their failure to respond to the arguments raised by counterclaimants on these claims constitutes an abandonment of these claims and dismissal is appropriate. Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n. 4 (9th Cir. 2005) (plaintiff "abandoned her other two claims by not raising them in opposition to the County's motion for summary judgment"); see also Walsh v. Nev. Dep't of Human Resources, 471 F.3d 1033, 1037 (9th Cir. 2006) (where opposition to motion to dismiss failed to address arguments in motion to dismiss, the plaintiff failed to demonstrate a continuing interest in pursuing a claim for relief and it was "effectively abandoned" and could not be raised on appeal.); In re TFT-LCD (Flat Panel) Antitrust Litigation, 586 F.Supp.2d 1109, 1131 (N.D. Cal. 2008). Accordingly, the Court GRANTS counterdefendants' motion to dismiss the causes of action for intentional interference with contractual relations, intentional interference with prospective economic relations, negligent interference with prospective economic advantage, defamation, fraud, and deceptive and unfair practices act under Florida law.
H. Leave to Amend or Futility of Amendment
Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto, 957 F.2d at 658 (quoting Schreiber Distrib. Co., 806 F.2d at 1401. In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. The Court must determine whether a second chance for leave to amend should be granted on the RICO causes of action.
In the Court's prior order, it provided Counterclaimants leave to amend the complaint to correct the deficiencies in their allegations which they failed to correct in the amended counterclaim. Instead, Counterclaimants added ten additional causes of action in the counterclaim. This required Counterdefendants to file a brief on each of these causes of action in their motion to dismiss, and in opposition, Counterclaimants fail to oppose. This has caused undue delay and prejudice to the opposing party and a waste of judicial resources. See SissetonWahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir.1996) (the Court's discretion to deny or grant leave to amend is particularly broad where Plaintiff has previously been permitted to amend his complaint and court looks at five factors in determining whether denial of leave to amend was an abuse of discretion).
Where Plaintiff was previously given leave to amend to correct the deficiencies in the amended counterclaims previously identified by the Court and failed to do so, the Court can conclude that further leave to amend would be futile. See Barkett v. Sentosa Props., LLC, No. 14cv1698-LJO-JLT, 2015 WL 3756348, at *8 (E.D. Cal. June 16, 2015). Therefore, the Court concludes that leave to amend the RICO causes of action would be futile and the Court DENIES Counterclaimants leave to amend.
Based on the above, the Court GRANTS Counterdefendants' motion to dismiss the counterclaim without leave to amend. The hearing set for June 26, 2015 shall be vacated.
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