United States District Court,

D. Kansas.

Juan B. PEREZ, Plaintiff,

v.

WEST PLAINS TRANSPORT, INC., Defendant,

and

Crowley Logistics, Inc., Defendant–Intervenor.

 

No. 13–1145–KHV.

Jan. 8, 2014.

 

Timothy J. King, Speth & King, Wichita, KS, for Plaintiff.

 

Michael K. Seck, Peter T. Maharry, Overland Park, KS, for Defendant.

 

Jennifer M. Hill, Katy E. Tompkins, McDonald, Tinker, Skaer, Quinn & Herrington, PA, Wichita, KS, for Defendant–Intervenor.

 

ORDER

JAMES P. O’HARA, United States Magistrate Judge.

*1 In this diversity case, the plaintiff, Juan B. Perez, brings a negligence claim against the defendant, West Plains Transport, Inc. Perez alleges that West Plains’s employees failed to properly secure a latch on top of a milk tanker that Perez was driving, and that while inspecting the latch, Perez fell and was injured. Crowley Logistics, Inc., the corporation that contracted with West Plains for West Plains to perform milk hauling services, was permitted to intervene as a defendant in this action.FN1 Crowley has filed a motion to join two additional parties as defendants—Dairy Farmers of America (“DFA”), the dairy cooperative that arranged for the milk to be hauled, and Southwest Milk Logistics, a subsidiary of DFA (ECF doe. 28). Because Crowley has failed to demonstrate that DFA and Southwest Milk are necessary parties to this action, the motion is denied.

 

FN1. ECF doc. 13 (permitting intervention under Fed.R.Civ.P. 24(a)(2)).

 

I. Background

The milk at issue in this action originated from Southwest Plains Farms in Syracuse, Kansas. Southwest Plains Farms is a member of DFA. DFA is broken into seven “member councils,” with Southwest Milk being the council that arranges for the transportation of milk in Texas, New Mexico, and part of Kansas. Southwest Milk contracted with Crowley for transportation services. Crowley, in turn, executed a milk-hauling agreement with West Plains for West Plains to satisfy Crowley’s hauling commitments. Finally, West Plains brokered with trucking company I.M. Transport, Perez’s employer, to provide certain transportation services.

 

On July 11, 2011, employees of West Plains went to Southwest Plains Farms and loaded milk into a milk tanker, which they then transported to a drop yard owned by DFA. Perez went to the drop yard, hooked the milk tanker to his tractor, and began driving to a scheduled delivery location in Texas. The next day, Perez noticed that milk was leaking from the top of the tanker. At a truck stop in Texas, Perez climbed to the top of the tanker in an attempt to correct the leak. Perez slipped from the top of the tanker and sustained personal injury and other damages.

 

On September 9, 2011, Perez filed suit in the court of Miami–Dade County, Florida (No.2011–28835–CA–01) against Crowley for the injury and damages he allegedly sustained in the fall. Perez alleged that Crowley owned the milk tanker and that the tanker had a defective hatch.FN2 Perez later amended his Florida state complaint to add DFA as a defendant. Crowley then filed a cross-claim for indemnity and contribution against DFA and a separate third-party complaint against West Plains for indemnity and contribution. The Florida court dismissed West Plains from that action, however, finding that West Plains did not have minimum contacts with Florida so as to submit itself to jurisdiction there. Perez filed the instant federal action against West Plains on April 17, 2013.

 

FN2. In Crowley’s memorandum in support of its motion to join additional parties, Crowley alleges that the milk tanker is actually owned by a company named SEMO.

 

Crowley’s motion in this case seeks to join DFA and Southwest Milk as defendants “so as to ensure a full and proper adjudication of the plaintiff’s claims.” FN3 Crowley asserts that this is the only court with jurisdiction over all potentially responsible parties (i.e., Crowley, West Plains, DFA, and Southwest Milk). Crowley argues that because its “defense necessarily relies on comparing the fault of multiple other parties, it is necessary that the Court bring all potentially liable parties into this lawsuit.” FN4 Neither plaintiff nor West Plains has filed a response to the motion.

 

FN3. ECF doc. 28 at 1.

 

FN4. ECF doc. 29 at 2–3.

 

II. Analysis

*2 Crowley seeks to join DFA and Southwest Milk as defendants under Fed.R.Civ.P. 19(a) and Fed.R.Civ.P. 20(a)(2). Neither of these rules, however, provides a successful path for joining the requested parties.

 

Crowley’s request for permissive joinder under Rule 20(a)(2) is easily rejected. The Tenth Circuit has unequivocally held that relief “under Rule 20 is a right belonging to plaintiffs,” not defendants.FN5 Thus, Crowley, an intervening defendant, may not join parties under the rule.

 

FN5. Hefley v. Textron, Inc., 713 F.2d 1487, 1499 (10th Cir.1983); Admin. Comm. of the Wal–Mart Associates Health & Welfare Plan v. Willard, 216 F.R.D. 511, 515 (D.Kan.2003) (“Rule 20(a) would not be appropriate in this case because Willard, as a defendant, cannot use Rule 20(a) to join Wal–Mart.”).

 

Rule 19(a) generally is available to defendants when an action should not proceed without the addition of a particular person as a defendant, but the requirements of that rule are not met here. Rule 19(a)(1) states:

 

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that the disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

 

Crowley has not addressed whether DFA and Southwest Milk are subject to service of process, nor whether the addition of either would deprive the court of subject-matter jurisdiction in this diversity case. But, in any event, Crowley has not met its burden of showing that either sub-part (A) or (B) of the rule is satisfied.

 

First, under sub-part (A), Crowley has not demonstrated that the court cannot accord complete relief among the existing parties. Crowley’s argument for joinder seems to be that the addition of DFA and Southwest Milk is necessary so that the comparative fault of all potentially liable parties may be determined in a single action. It is true that under Kansas comparative negligence law “the proportionate fault of all persons concerned can and must be determined in a single proceeding.” FN6 However, it is well-established that the determination of proportionate fault may be made without the presence of all potentially liable persons.FN7 Instead of permitting joinder of other potentially liable persons, Kansas federal courts have “consistently adhered to the ‘phantom party’ concept” in determining comparative negligence.FN8 Thus, Crowley has not demonstrated that the joinder of DFA and Southwest Milk is necessary for the court to accord complete relief among existing parties.

 

FN6. Hefley, 713 F.2d at 1498; see also K.S.A. § 60–258a(d) ( “When the comparative negligence of the parties is an issue and recovery is permitted against more than one party, each party is liable for that portion of the total dollar amount awarded as damages to a claimant in the proportion that the amount of that party’s causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is permitted.”).

 

FN7. Hefley, 713 F.2d at 1498; Bremenkamp v. Beverly Enterprises–Kan., Inc., Nos. 89–2006, 89–2060, 1989 WL 103643, at *2 (D.Kan. Aug. 9, 1989) (finding Rule 19(a)(1) inapplicable because “complete relief can be accorded among those already parties because under the Kansas comparative negligence statute, in determining [defendant]’s negligence the court may take into account the negligence of non-parties”).

 

FN8. Baird v. Phillips Petroleum Co., 535 F.Supp. 1371, 1378 (D.Kan.1982) (quoting Stueve v. Am. Honda Motors Co., 457 F.Supp. 740, 750 (D.Kan.1978)); see also Stadtherr v. Elite Logistics, Inc., No. 00–2471, 2002 U.S. Dist. LEXIS 8470, at *10 (March 26, 2002) (“Formal joinder is not a prerequisite to a determination of comparative fault.”);   Bremenkamp, 1989 WL 103643, at *2 (holding potentially liable persons need not be joined to apply the Kansas comparative negligence statute); Green Constr. Co. v. Kan. Power & Light Co., No. 87–2070, 1989 WL 48850, at *2–3 (D. Kan. April 13, 1989) (allowing joint tortfeasors to be “phantom parties,” but disallowing formal joinder).

 

Second, under sub-part (B), Crowley has not demonstrated that either DFA or Southwest Milk is claiming an interest relating to the subject of this action. Although Crowley expresses concern that it could be “subject to inconsistent obligations if the action is adjudicated in Florida,” FN9 Crowley does not explain how these alleged obligations will occur “because of [an] interest” claimed by either DFA or Southwest Milk.FN10 Because neither DFA nor Southwest Milk has claimed an interest in this action, sub-part (B) does not apply.FN11

 

FN9. ECF doc. 29 at 9.

 

FN10. See Thompson v. United Transp. Union, No. 99–2288, 2000 WL 382033, at * (D.Kan. March 30, 2000) (denying a defendant’s motion to join potentially liable company because the defendant did not demonstrate that company claimed an interest in the litigation, nor that defendant was subject to double obligations by reason of an interest claimed by company).

 

FN11. Hefley, 713 F.2d at 1498–99 (denying joinder of persons who did not claim an interest in the action); United States v. Bowen, 172 F.3d 682, 689 (9th Cir.1999) (“Joinder is contingent upon an initial requirement that the absent party claim a legally protected interest relating to the subject matter of the action.” (internal citation and quotation omitted)). See also Bremenkamp, 1989 WL 103643, at *2 (finding no risk of inconsistent verdicts against defendant from parallel state-court action involving both defendant and other potentially liable parties because whichever action reached judgment first “will be asserted as res judicata in the other”).

 

*3 Finally, the court denies Crowley’s motion for joinder because, even if Crowley had demonstrated that DFA and Southwest Milk were necessary parties under Rule 19(a), Crowly has wholly failed to address the second step of a Rule 19 analysis: whether joinder of DFA and Southwest Milk is “feasible.” FN12 Feasibility considers questions of jurisdiction and venue. Crowley has not indicated the citizenship of DFA or Southwest Milk, nor, as noted above, addressed whether the court could retain subject-matter jurisdiction if the two were added as defendants in this diversity-based action.FN13

 

FN12. Davis v. United States, 192 F.3d 951, 957 (10th Cir.1999) ( “When applying Rule 19, a district court must first determine whether the absent party is necessary to the lawsuit and, if so, whether joinder of the absent party is feasible.”).

 

FN13. If joinder were found not feasible, the court would then go on to determine whether DFA and Southwest Milk are “indispensable,” i .e., “whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed.R.Civ.P. 19(b).

 

IT IS THEREFORE ORDERED that Crowley’s motion for joinder of DFA and Southwest Milk is denied

United States District Court,

S.D. Alabama,

Southern Division.

WRIGHT TRANSPORTATION, INC., etc., Plaintiff,

v.

PILOT CORPORATION, et al., Defendants.

 

Civil Action No. 13–0352–WS–N.

Jan. 9, 2014.

 

Stephen M. Tunstall, Mobile, AL, for Plaintiff.

 

Parker David Kasmer, M. Christian King, Lightfoot, Franklin & White, LLC, Birmingham, AL, W. Joseph McCorkle, Jr., Balch & Bingham, Montgomery, AL, Martin G. Durkin, Jr., Holland & Knight, LLP, Chicago, IL, William Gordon Ball, Law Office of Gordon Ball, Knoxville, TN, for Defendants.

 

ORDER

WILLIAM H. STEELE, Chief Judge.

*1 This matter is before the Court on the defendants’ motions to dismiss. (Docs.31, 34, 36, 38). The parties have filed briefs in support of their respective positions, (Docs.32, 35, 43, 44–47), and the motions are ripe for resolution. After careful consideration, the Court concludes the motions are due to be granted in part and denied in part.

 

BACKGROUND

According to the complaint, the plaintiff is a long-haul trucking company with its principal place of business in Mobile County. (Doc. 1, ¶¶ 3, 23). Defendant Pilot Travel Centers, LLC (“Pilot Flying J”) owns and operates a network of truck stops, travel centers and travel plazas throughout the United States. (Id., ¶ 25). Defendant Pilot Corporation (“Pilot Corp.”) owns and operates Pilot Flying J. (Id., ¶ 24). Defendant James A. Haslam III was at all relevant times chairman and CEO of both Pilot entities. (Id., ¶ 26). Defendant Mark Hazelwood was at all relevant times president of both Pilot entities. (Id., ¶ 27). Defendant Brian Mosher was at all relevant times director of national accounts and a director of sales for Pilot Flying J. (Id., ¶ 28). Defendant John Freeman was at all relevant times vice president of sales for both Pilot entities. (Id., ¶ 29).

 

In or about 2005, the plaintiff entered a fuel rebate and/or discount contract with Pilot Flying J, pursuant to which Pilot Flying J sold diesel fuel to the plaintiff at a discount. (Doc. 1, ¶¶ 9.23). In April 2013, a 120–page affidavit executed by an FBI special agent was filed by the United States in support of an application for several search warrants and was thereafter unsealed. (Id., ¶¶ 4–5, 54). The affidavit is attached to the complaint as an exhibit and is incorporated into the complaint by reference. (Id., ¶ 6). The affidavit reflects a breathtakingly vast scheme to cheat customers of Pilot Flying J out of the benefits of the fuel discounts negotiated with those customers. (Id., Exhibit A).

 

The complaint sets forth the following claims against the designated defendants:

 

 

•Count One

RICO

All but Pilot Flying J

•Count Two

RICO conspiracy

All but Pilot Flying J

•Count Three

Breach of contract

Pilot Flying J

•Count Four

Deceptive trade practices

All defendants

•Count Five

Unjust enrichment

All defendants

•Count Six

Fraudulent misrepresentation

All defendants

•Count Seven

Negligent misrepresentation

All defendants

•Count Eight

Suppression

All defendants

 

 

(Doc. 1 at 24–35). The complaint also seeks class certification. (Id. at 20–22). The defendants seek dismissal of the complaint in its entirety under Rule 12(b)(6). (Doc. 34 at 1).FN1

 

FN1. Although the four individual defendants have filed three motions to dismiss, their briefing is limited to adoption of the arguments asserted by the Pilot entities. Accordingly, the Court focuses on the filings of the entity defendants.

 

DISCUSSION

The Court addresses below the plaintiff’s claims in the order presented in the complaint.

 

I. RICO.

The complaint alleges that the defendants (except Pilot Flying J) violated 18 U.S.C. § 1962(c). (Doc. 1 at 24). The “pattern of racketeering activity” is alleged to consist of “multiple, repeated, and continuous acts of mail fraud and/or interstate and/or foreign wire fraud.” (Id., ¶ 60). Because the plaintiff relies on acts of mail and/or wire fraud, the complaint must satisfy Rule 9(b). American Dental Association v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.2010). “We have held that pursuant to Rule 9(b), a plaintiff must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time, place and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Id. The defendants assert that the complaint fails to satisfy Rule 9(b). (Doc. 35 at 10–12). The Court agrees.

 

*2 The plaintiff insists it can rest on the allegations of the FBI agent’s affidavit. (Doc. 43 at 9). The excerpts cited by the plaintiff, (id. at 9–14), may describe the internal workings of the scheme, but they say very little about communications with the victims. More to the point, the affidavit does not reference the plaintiff at all, much less assert that any particular individual associated with any particular defendant made any particular statement to any particular representative of the plaintiff in any particular message transmitted via any particular form of communication on any particular date at any particular place. Whatever play in the joints may exist for excusing some deficiencies in this regard, the plaintiff’s failure is complete and cannot by any stretch of the imagination be said to satisfy even the most forgiving construction of Rule 9(b). The plaintiff cites no authority at all, much less any authority indicating that the complaint alleges fraud with adequate particularity.

 

The defendants raise a number of other objections to the RICO claim but, because their Rule 9(b) argument is dispositive, the Court declines to address them. The Court has and expresses no opinion whether these arguments, or any of them, would be independently adequate to require dismissal of Count One.

 

II. RICO Conspiracy.

The defendants argue that a RICO conspiracy claim must be dismissed if the substantive claim is dismissed. (Doc. 35 at 17; Doc. 45 at 11). This appears to be the law, at least when the conspiracy claim “does not contain additional allegations.” American Dental, 605 F.3d at 1296 n. 6 (internal quotes omitted).

 

The same rule applies when the deficiency in the substantive count is a failure to comply with Rule 9(b). “[W]here a conspiracy claim alleges that two or more parties agreed to commit fraud, the plaintiff must also plead this act with specificity.” American United Life Insurance Co. v. Martinez, 480 F.3d 1043, 1065 (11th Cir.2007). Thus, where a plaintiff’s substantive and conspiracy RICO claims “fai[l] to plead the predicate acts of mail fraud with the particularity required under Rule 9(b) …,” both claims are subject to dismissal on that basis. Id.

 

The plaintiff’s two-sentence argument—which addresses only the “enterprise” requirement of a RICO claim, (Doc. 43 at 18)—is unresponsive. Since Count Two contains no allegations beyond those of Count One relative to the particularity requirement, (Doc. 1 at 27–28), it is equally subject to dismissal for violation of Rule 9(b).

 

The defendants assert additional reasons why Count Two should be dismissed. (Doc. 35 at 17–19). As with Count One, the Court does not consider these arguments because the deficiencies addressed above are dispositive. Again, the Court has and expresses no opinion whether any of the defendants’ other arguments would succeed.

 

III. Breach of Contract.

The defendants argue that the complaint fails to state a claim because it “does not identify the rebate ‘and/or’ discount contract [the plaintiff] had with Pilot, and it fails to identify the particular terms of any agreement allegedly breached.” (Doc. 35 at 23). The only Eleventh Circuit case the defendants cite involved a motion for summary judgment, not a motion to dismiss, and so is inapposite. No doubt a complaint for breach of contract must satisfy Rule 8(a)(2), but the defendants have failed to show that the complaint in this case fails to do so.

 

*3 The complaint alleges that the plaintiff and Pilot Flying J entered a contract that required Pilot Flying J “to credit or refund a certain percentage of Plaintiff’s fuel purchases on a monthly basis.” (Doc. 1, ¶ 23). The amount of the discount (expressed in cents per gallon) was agreed upon by the parties. (Id., ¶ 9). The contract required Pilot Flying J to rebate to the plaintiff the discounted amount on a monthly basis. (Id., ¶ 12). Instead of rebating the full, negotiated amount, however, Pilot Flying J “unilaterally with[e]ld a portion of the rebate.” (Id.). Count Three incorporates all these allegations, (id., ¶ 71), and it is difficult to imagine what could be missing from them. The parties agreed to a set discount to be honored by rebate, and Pilot Flying J breached the agreement by rebating less than the full, agreed discount. The Court can detect no deficiency in these allegations, and the defendants’ cursory argument is unilluminating. To the extent they suggest the contract must be attached to the complaint, that the title, date and/or signatories must be set forth, that the complaint must cite or quote a particular numbered paragraph of the contract, or that it must set forth the precise amount of the negotiated discount, none of their authorities (all unpublished) stand for any such proposition. With no authority and no explanation, the defendants’ position cannot be accepted.FN2

 

FN2. The defendants’ use of quotation marks around “and/or” suggests an objection to ambiguity about whether the plaintiff’s contract was a rebate contract (with the customer paying the retail price and later receiving a rebate check representing the discount) or a discount contract (with the customer receiving a bill reflecting the discount, which bill the customer would then pay). (Doc. 1, ¶¶ 10–12). The matter does not seem ambiguous to the Court, since the complaint states that the plaintiff used the rebate option, (id., ¶ 12), with references to the other option included only because the plaintiff sought to represent a class containing customers who selected either option. (Id., ¶ 45). At any rate, the defendants have not explained how any ambiguity as to the option selected by the plaintiff prevents the complaint from stating a cause of action.

 

IV. Deceptive Trade Practices.

Count Four alleges that the defendants violated Section 8–19–5 of the Alabama Code. (Doc. 1, ¶ 82). That provision is part of Alabama’s Deceptive Trade Practices Act (“the Act”). Section 8–19–5 lists a number of unlawful acts or practices, but it is Section 8–19–10 that creates a cause of action and establishes its limits. It provides in relevant part that “[a]ny person who commits one or more of the acts or practices declared unlawful under this chapter and thereby causes monetary damage to a consumer … shall be liable to each consumer” for specified damages. Id. § 8–19–10(a). A “consumer” is defined as “any natural person who buys goods or services for personal, family or household use.” Id. § 8–19–3(2). Thus, an artificial entity has no claim under the Act. E.g., EBSCO Industries, Inc.v. LMN Enterprises, Inc ., 89 F.Supp.2d 1248, 1266 (N.D.Ala.2000); In re: Ford Motor Co. E–350 Van Products Liability Litigation, 2008 WL 4126264 at *22 (D.N.J.2008); In re: Bextra and Celebrex Marketing Sales Practices and Product liability litigation, 495 F.Supp.2d 1027, 1036 (N.D.Cal.2007).FN3

 

FN3. The Act does permit a cause of action for non-natural persons, but only with respect to two acts or practices, involving pyramid schemes and seller-assisted marketing plans. Ala.Code § 8–19–5(19), (20); id. § 8–19–10(a). Neither is remotely implicated here.

 

As the defendants point out, (Doc. 35 at 24–25), the plaintiff is not a natural person, and it did not purchase fuel for personal, family or household use. The plaintiff offers no argument to the contrary. (Doc. 43 at 21). This claim is thus due to be dismissed.

 

V. Unjust Enrichment.

As this Court has noted, “Alabama law is clear that quasi-contractual, equitable remedies such as unjust enrichment are not cognizable in the presence of an express contract between the parties that governs the same subject matter.” Branch Banking and Trust Co. v. Howard, 2013 WL 951652 at *5 (S.D.Ala.2013). The defendants, citing Howard, conclude that Count Five is precluded by Count Three. (Doc. 35 at 27–28).

 

*4 The plaintiff responds that, while this principle precludes an ultimate recovery under both theories, it does not preclude the plaintiff from asserting both theories in its complaint. (Doc. 43 at 21). But, assuming a plaintiff may appropriately plead an unjust enrichment claim in the alternative (based on the premise that no express contract exists),FN4 it has not done so. Count Five incorporates all prior allegations of the complaint, (Doc. 1, ¶ 88), and therefore incorporates the allegation of an express contract. ( Id., ¶ 23). “Given that Count [Five] thus alleges an express contract covering the same subject matter, the plaintiff’s unjust enrichment claim must fail as a matter of law.” Gould v. Transamerica Life Insurance Co., 2012 WL 512667 at *3 (S.D.Ala.2012).

 

FN4. The Court has indulged this assumption in past cases. Howard, 2013 WL 951652 at *6; Gould v. Transamerica Life Insurance Co., 2012 WL 512667 at *3 (S.D.Ala.2012).

 

According to the defendants, this argument is fatal to Count Five in toto. But the plaintiff’s contract is with Pilot Flying J only, and the defendants have failed to explain how the resulting preclusion of a viable unjust enrichment claim can extend beyond that contracting defendant. The claim is thus due to be dismissed as to Pilot Flying J only.

 

VI. Fraud.

The plaintiff’s claims of fraudulent misrepresentation, negligent misrepresentation and suppression can be considered together. As the Court has previously held, “[c]laims of fraudulent suppression, like claims of fraudulent misrepresentation, must be pleaded with particularity under Rule 9(b).” RC Lodge, LLC v. SE Property Holdings, LLC, 2012 WL 2898815 at *3 (S.D.Ala.2012) (internal quotes omitted). The Court likewise has recognized that Rule 9(b) must be satisfied with respect to claims of negligent misrepresentation. Abrams v. CIBA Specialty Chemicals Corp., 2008 WL 4183344 at *8 (S.D.Ala.2008); Preis v. Lexington Insurance Co., 2006 WL 2378418 at *1–2 (S.D.Ala.2006).FN5 The plaintiff does not disagree. (Doc. 43 at 18–19). As discussed in Part I, the complaint does not come anywhere near satisfying Rule 9(b). These claims are thus due to be dismissed.

 

FN5. See also Inman v. American Paramount Financial, 517 Fed. Appx. 744, 748 (11th Cir.2013) (claim of negligent misrepresentation must satisfy Rule 9(b)); Smith v. Ocwen Financial, 488 Fed. Appx. 426, 428 (11th Cir.2012) (same); see generally Ala.Code § 6–5–101 (“Misrepresentations of a material fact … made by mistake and innocently and acted on by the opposite party … constitute legal fraud.”).

 

VII. Class Claims.

The plaintiff concurs with the defendants that the judicial approval of a proposed class action settlement in the Eastern District of Arkansas would deprive it of standing to pursue class claims herein. (Doc. 35 at 29–30; Doc. 43 at 21). That approval has now occurred. (Doc. 48 at 5).

 

CONCLUSION

For the reasons set forth above, the defendants’ motions to dismiss are granted with respect to Counts One, Two, Four, Six, Seven and Eight; granted as to Pilot Flying J only with respect to Count Five; and granted as to all class claims. These claims, counts and portions of counts are dismissed. As to Counts One, Two, Six, Seven and Eight, dismissal is with leave to amend. In all other respects, the motions to dismiss are denied.

 

DONE and ORDERED.