Opinion
Civil No. 01-CV-4001 (JBS)
February 28, 2002
Kenneth J. Isaacson, Esq., Goldberg, Mufson Spar, West Orange, NJ, for Plaintiff.
Jermy D. Frey, Esq., Pepper Hamilton, LLP, Cherry Hill, NJ, Defendant Donald West.
William C. Mead, Jr., Esq., Blank, Rome, Comisky McCauly, LLP, Cherry Hill, NJ, for Defendants Goldin Sports Marketing and Licensing, Inc. and Kenneth Goldin.
O P I N I O N
INTRODUCTION
Presently before the Court are two separate dispositive motions. The first is the motion by defendant Donald West to dismiss him as a party under Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction. The second is Goldin Sports Marketing and Licensing, Inc. and Kenneth Goldin's motion to dismiss Count VII of plaintiff Sam DiGiralomo's Complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. and to dismiss them as parties to this case.
For reasons discussed herein, the Court will grant defendant West's motion and dismiss the Complaint as to West for lack of personal jurisdiction. The Court will in part grant defendants Goldin Sports and Goldin's motion to dismiss, dismissing Count VII of the Complaint, and will deny in part, keeping Goldin Sports and Goldin as parties in this action.
FACTUAL BACKGROUND, COMPLAINT, AND LEGAL ALLEGATIONS
Shop At Home, Inc. ("Shop At Home"), a Tennessee based corporation, is a cable shopping network that sells merchandise through cable broadcasts, satellite television, and an Internet website. One of the categories of merchandise Shop At Home offers is sports collectibles and memorabilia. (Pl.'s Am. Compl., p. 2, ¶ 2.)
On or about December 7, 2000, plaintiff Sam DiGiralomo purchased two 1997 Tiger Woods Rookie Cards offered for sale on a broadcast of the Shop At Home network. (Pl.'s Am. Compl., p. 6, ¶ 20.) Plaintiff believed the cards he was purchasing were from one of three boxed sets produced by Grand Slam Ventures, either: (1) 1997 Gold Foil "Champions of the Masters Collection"; (2) 1997 Gold Ink "Champions of the Masters Collection"; or (3) 1998 Gold Ink "Champions of the Masters Collection." (Id. at p. 8, ¶ 10.) Plaintiff alleges that what he received instead was a "card" cut from a 1999 Grand Slam Ventures poster, not a card from a boxed set. (Id. at p. 7, ¶ 4, p. 8, ¶¶ 7-13.)
On or about December 10, 2000, plaintiff made another purchase from Shop At Home. (Id. at p. 13, ¶ 2.) The December 10th purchase was of a limited edition Tiger Woods lithograph signed by the artist. (Id. at ¶ 3.) Approximately two months after this purchase, on or about February 7, 2001, plaintiff received a letter from Shop At Home explaining that the lithograph was in fact a poster and the poster was not a limited edition. (Id. at ¶ 4.) The letter offered plaintiff a full refund, which he accepted. (Id. at 14, ¶ 6.)
On July 13, 2001, plaintiff filed suit in this Court against Shop At Home, Goldin Sports Marketing and Licensing, Inc. (Goldin Sports"), Donald West ("West"), and Kenneth Goldin ("Goldin") (referred collectively as "defendants"). On November 5, 2001, plaintiff filed an amended complaint. In his Amended Complaint, plaintiff named Certified Collectibles, Company ("Certified Collectibles") as a defendant, in addition to the original defendants. Plaintiff's complaint alleges that the defendants engaged in a scheme to defraud customers in violation of state and federal law. Specifically, the Amended Complaint alleges breach of contract (Count I); New Jersey common law fraud (Count II), violation of the New Jersey Consumer Protection Act, N.J.S.A. 56:8-1 et. seq. (Count III), state racketeering (Counts IV and V); and federal racketeering (Counts VI and VII). Further, Count VIII seeks a mandatory injunction requiring defendants to procure and pay for an appraisal of all merchandise plaintiff has purchased from Shop At Home and its vendors since April 2000. (Pl.'s Am. Compl. at p. 15, ¶ 1.)
Defendants Goldin Sports and Goldin filed their motion to dismiss on October 22, 2001. Defendant West filed a motion to dismiss based on lack of personal jurisdiction on December 7, 2001.
DISCUSSION I. Motion to Dismiss for Lack of Personal Jurisdiction
Defendant Donald West argues that this Court lacks personal jurisdiction over him as required by New Jersey's long-arm statute and the federal constitution. Plaintiff contends that West's activities for his employer and a brief non-business conversation with defendant Goldin during a two-day trip to the state is sufficient to establish the minimum contacts with New Jersey. (Pl.'s Op. Br. at 11-15.) This Court will grant Defendant West's motion to dismiss pursuant to Rule 12(b)(2), Fed.R.Civ.P., because West lacks the minimum contacts necessary for a New Jersey court to exercise personal jurisdiction over him.
A. Standard of Review for 12(b)(2) Motion
To exercise personal jurisdiction over a defendant, a federal court sitting in diversity must undertake a two-step analysis. First, the court must apply the relevant state long-arm statute to see if it permits the exercise of personal jurisdiction. See Pennzoil Prods. Co. v. Colelli Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). Next, the court must determine whether exercising personal jurisdiction would violate federal due process. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Pennzoil, 149 F.3d at 200. In New Jersey, this inquiry is combined into a single step because the state's long-arm statute, N.J. Civ. Prac. R. 4:4-4, permits the exercise of personal jurisdiction to the fullest limits of due process permitted by the Fourteenth Amendment.See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir. 1981); Decker v. Circus Circus Hotel, 49 F. Supp.2d 743, 745 (D.N.J. 1999).
Once a party raises the defense of lack of personal jurisdiction, the burden is on the plaintiff to show the defendant has purposefully directed its activities toward the residents of the forum state or otherwise "purposefully availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." See Hanson v. Denckla, 357 U.S. 235, 253 (1958). A plaintiff may not rely on the pleadings alone in order to withstand a motion to dismiss for lack of personal jurisdiction. See Stranahan Gear Co., Inc. v. NL Indus., 800 F.2d 53, 58 (3d Cir. 1986);Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984).
This being the case, the plaintiff must come forward with facts sufficient to establish by a preponderance of evidence that the district court has personal jurisdiction over the defendant. Time Share Vacation Club, 735 F.2d at 65; see also IMO Indus., 155 F.3d at 257 ("the plaintiff bears the burden of proving that personal jurisdiction is proper"); Gehling v. St. George's Sch. of Med., 773 F.2d 539, 542 (3d Cir. 1985) ("plaintiff bears the burden of establishing with reasonable particularity sufficient contacts between the defendant and the forum state to support jurisdiction").
B. Defendant Donald West
1. Jurisdiction Based on Jurisdiction of Employer
Plaintiff first argues that West's activities as an employee of Shop At Home allow this Court to exercise personal jurisdiction over him. Even assuming jurisdiction is appropriate over Shop At Home, personal jurisdiction over West cannot be based solely on his employer's actions.
Since the parties have not raised the issue of Court's personal jurisdiction over Shop At Home, the Court will not comment on this issue at this time.
Defendant West both lives and works in the state of Tennessee. (West Aff., ¶¶ 1, 3.) At the time of the events in question, West was employed by a Shop At Home, a Tennessee based corporation, as a salaried employee. (Id. at ¶ 3.) West was working as the on-air host showcasing merchandise when plaintiff placed his order for the trading cards from Shop At Home. (Pl.'s Am. Compl., p. 6, ¶ 20.)
Personal jurisdiction over a defendant is not established simply because he is an employees of a business subject to jurisdiction in a district court. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984). Some other basis for jurisdiction must exist. See id. at 781 n. 13 (citations omitted); see also Nicholas v. Saul Stone Co., 224 F.3d 179, 184 (3d Cir. 2000) (upholding a finding of no jurisdiction over individuals simply because they were employees or agents of an organization amenable to the district court's jurisdiction), cert. denied, 531 U.S. 1076 (2001). In Keeton, the Supreme Court noted that "jurisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him. . . . Each defendant's contacts with the forum state must be assessed individually."Keeton, 465 U.S. at 781 n. 13.
Since there cannot be personal jurisdiction over West based on Shop At Home's jurisdiction, plaintiff's first argument fails and this Court must assess West's own contacts with New Jersey.
2. Specific Jurisdiction based on Minimum Contacts
Plaintiff argues that West had the requisite contact with New Jersey in his individual capacity to establish "minimum contacts" as required by due process. Specifically, plaintiff points to a brief conversation between West and defendant Goldin in Atlantic City, New Jersey and an alleged on-going conspiracy with defendant West, a New Jersey resident.
Due process requires that the defendant have "minimum contacts" in the forum state, and that the exercise of a court's jurisdiction comport with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A court must determine whether a defendant had the minimum contacts with the forum necessary for the defendant to have "reasonably anticipate[d] being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted). In judging minimum contacts, a court must focus on "the relationship among the defendant, the forum, and the litigation."Shaffer v. Heitner, 433 U.S. 186, 204 (1977); see also Rush v. Savchuk, 444 U.S. 320, 332 (1980).
The Court must decide whether the actions underlying the complaint are sufficient to establish minimum contacts with New Jersey under specific jurisdiction. A single isolated contact with a forum state is enough to establish personal jurisdiction when the plaintiff's claim is related to or arises out of the defendant's contacts with the forum.Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, n. 8 (1984); Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984). Specific jurisdiction is established when a non-resident defendant has "purposefully directed" his activities at a resident of the forum and the injury arises from or is related to those activities.Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). When determining if specific jurisdiction exists, a court's first focus is on minimum contacts. Dollar Sav. Bank, 746 F.2d at 212. A court must determine whether the defendant had the minimum contacts with the forum necessary for the defendant to have "reasonably anticipated being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted). The issue of minimum contacts is fact-sensitive and turns on the "quality and nature of a defendant's activity [in the forum state]." Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 298 (3d Cir. 1985) (citation omitted).
Plaintiff does not contend that West maintains the "continuous and systematic" contacts with New Jersey to subject him to general personal jurisdiction. (Pl. Opp. Br. at 7-8.) See Provident Nat. Bank v. California Federal Sav. Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted).
Second, even if "minimum contacts" exist, a court must decide whether exercising personal jurisdiction would offend "traditional notions of fair play and substantial justice." Carlough v. Amchem Products, Inc., 10 F.3d 189, 199 (3d Cir. 1993) (quoting Int'l Shoe, 326 U.S. at 316). These requirements apply to federal question cases, as well as diversity claims. See id. (citing In re Real Estate Title, 869 F.2d 760, 766 n. 6 (3d Cir. 1989)).
Here, plaintiff's claims arise out of the sale of two golf trading cards. (Pl.'s Am. Compl., p. 6, ¶¶ 20-21.) Plaintiff`s argument that the December 7, 2000 Shop At Home broadcast, which offered the cards for sale on national TV, satisfies specific jurisdiction is misplaced. (Pl.'s Br. at 11 (citing Keeton and Helicopteros.)) Only contacts with the forum by the defendant in question in his individual capacities constitute "minimum contacts" for a specific jurisdiction analysis. See Burger King, 471 U.S. at 475 ("Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum State.") (emphasis in original). Thus, in order to establish specific jurisdiction, plaintiff must make a prima facie showing that his claims "arise out of" or "result from" the West's acts in New Jersey, the forum state.
Plaintiff contends that his claim arises "out of" or "results from" a brief conversation between West and Goldin. (Pl.'s Br. at 7.) While plaintiff acknowledges that West's only physical contact with New Jersey was for a brief two-day business trip (Pl.'s Opp. Br. at 7, 11, 13), he argues that a conversation West had with defendant Goldin while in New Jersey was for the purpose of conspiring with Goldin to defraud customers by selling phony trading cards. Plaintiff has come forward with no facts to establish by a preponderance of the evidence that the conversation with Goldin was anything more than what West claims it was — a brief non-business related conversation. (West Aff., ¶ 5.) Rather, plaintiff boldly asserts that "[t]he sheer incredibility of [West's] proposition renders Mr. West's denial that any business was discussed suspect." (Pl.'s Br. at 15.)
Plaintiff next argues that West acted as an agent of defendant Goldin, and therefore Goldin's contacts in New Jersey can be attributable to West. (Pl.'s Br. at 13-14.) To support this agency theory plaintiff cites Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476 (3d Cir. 1993). (Pl.'s Br. at 13.) In Grand Entertainment, however, the court found that each defendant had the minimum contacts with the forum through telephone calls to the forum state and correspondence sent to the forum state. Grand Entm't, 988 F.2d at 482-83. With regard to agency, the court noted that "[a]ctivities of a party's agent may count toward the minimum contacts necessary to support jurisdiction." Id. at 483 (emphasis added). Thus, contact by an agent is only one part of the minimum contacts equation. Further, the cases cited by the court in Grand Entertainment to support this principal dealt with the existence of formalized agency relationships: the employer-employee relationship in Taylor v. Phelan, 912 F.2d 429, 433-34 (10th Cir. 1990); and a partnership agreement in Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990).
Here, not only is there no formalized agency relationship between West and Goldin, the plaintiff offers no evidence to support the allegation that West was an agent for Goldin. Instead, plaintiff relies only on the bare allegations in his pleadings, which is not permitted under Time Share Vacation Club. Such specific facts to support plaintiff agency theory would include, for example, statements by West indicating that he was acting on behalf of Goldin, as was the case in Automated Salvage Transport, Inc. v. NV Koninklijke KNP, 1997 U.S. Dist. LEXIS 14062, at *65 (D.N.J. September 12, 1997), another case cited by plaintiff.
Therefore, this Court cannot, consistent with due process standards, subject West to the jurisdiction of this Court based on his alleged role in the selling of two trading cards to plaintiff. As such, this Court cannot find that specific jurisdiction exists over West and he must be dismissed for lack of personal jurisdiction.
II. Motion to Dismiss Count VII
Defendants Goldin Sports and Goldin argue that plaintiff's Count VII should be dismissed for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. They based their argument on the fact that this Court lacks the power to grant what plaintiff is seeking.
A. Standard of Review for 12(b)(6) Motion
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim.Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litig., 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d at 103. Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint matter are taken into consideration. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
A complaint must not be dismissed for failure to state a claim unless it appears beyond reasonable doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Moreover, if a motion to dismiss under 12(b)(6) is granted, then ordinarily the plaintiff should be provided an opportunity to amend the complaint if it appears that the deficiencies can be corrected by amendment. See 2A J. Moore, Moore's Federal Practice ¶¶ 12.07[2.-5], p. 12-99 (2d ed. 1994). A complaint will not be dismissed with prejudice under 12(b)(6) unless it appears that the failure to state a claim cannot be cured by the filing of an amendment.
B. Plaintiff's Count VII
Defendants have moved under Rule 12(b)(6), Fed.R.Civ.P., to dismiss plaintiff's request for a Mandatory Injunction to require defendants to pay for an apprisal of the merchandise he purchased from defendants over the years. A mandatory injunction is an extraordinary remedy that a Court will only issue upon a showing of irreparable harm. Because plaintiff is only alleging potential monetary damages, which do not meet the type of harm required, defendants' motion will be granted.
Although an injunction is an equitable remedy that lies within the discretion of the court, see Gen. Instrument Corp. of Delaware v. Nu-Tek Elecs. Mfg., Inc., 197 F.3d 83 (3rd Cir. 1999), an injunction is considered an extraordinary interim remedy. ATT v. Winback Conserve Program, 42 F.3d 1421, 1426-27 (3d Cir. 1994).
Courts may only enter preliminary injunctions upon a showing of likelihood of irreparable harm before a case is resolved on its merits.See Wyrough Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967). Monetary damages do not constitute the type of irreparable harm that would justify injunctive relief. See Frank's GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102-03 (3d Cir. 1988) (noting that "[t]he availability of adequate monetary damages belies a claim of irreparable injury").
Plaintiff argues that because he received a letter indicating that a mistake had been made in one transaction, all of the transactions entered into with the defendants should be called into question. (Pl.'s Am. Compl., Count VIII.) While plaintiff may have a sincere belief that the value of his collection is compromised, it is not within this Court's power to order defendants to pay for an apprisal. Even if plaintiff could prove his claim on the merits, he would still have failed to show the necessary irreparable injury required for a mandatory injunction because his harm would only encompass monetary damages. Granting plaintiff further leave to again amend his complaint will not cure this defect. As such, defendants' motion to dismiss Count VIII will be granted.
III. Motion to Dismiss Parties
Defendants Goldin Sports and Kenneth Goldin also request that they be dismissed as parties to this action. To dismiss a party, the court uses Rule 12(b)(6), Fed.R.Civ.P., and the standard developed under this Rule, as described in section II.A above.
Defendants argue that because they identified the proper party to this action as Certified Collectibles, another company which defendant Goldin "is affiliated with" as an employee, Goldin Sports should be dismissed. (Defs.' Br. at 3, 7.) To support the dismissal of Goldin, defendants assert that "there is no allegation that Kenneth Goldin, in his individual capacity, had any involvement with the subject transaction." (Id. at 7.) Finally, the defendants argue that there is no good faith basis for their inclusion and that plaintiff only named them as parties to "harass and needlessly increase the cost of litigation." (Id. at 4, 5.)
Defendants wished to substitute Goldin Sports for Certified Collectibles as a party to this case. (Defs.' Br. at 3-4.) However, in his Amended Complaint, filed November 5, 2001, plaintiff added Certified Collectibles as a defendant to this lawsuit.
In his Amended Complaint, plaintiff alleges that Goldin, as a principal of both Goldin Sports and Certified Collectibles, entered into an elaborate scheme with the other defendant to defraud Shop At Home Customers. (Pl.'s Am. Compl., p. 3-4, 7, ¶ 3.) The Complaint alleges that a conspiracy was formed so that defendants could benefit monetarily by making false representations regarding the Tiger Woods cards offered for sale on Shop At Home. (Id. at 7, ¶ 3.) As a principal of both Goldin Sports and Certified Collectibles, plaintiff assumes that Goldin would have personal financial instantiative to enter into the conspiracy.
Two of the Counts plaintiff charges are violations of federal racketeering statutes, 18 U.S.C. § 1961 and § 1962 ("RICO"). (Pl. Am. Compl., p. 11-12.) In the Third Circuit, a plaintiff can state a RICO claim against an individual defendant by alleging he, even though part of a corporate enterprise, conducted racketeering acts in his private capacity and to his own benefit. See Emcore Corp. v. Pricewaterhouse Coopers LLP, 102 F. Supp.2d 237, 258, 259 n. 11 (D.N.J. 2000). It is not outside the realm of possibilities that Goldin, as a principal of two of the defendant corporations, acted outside the scope of "normal affairs" of Goldin Sports and Certified Collectibles, when he allegedly entered into a conspiracy.
The standard this Court must view these allegations is not whether plaintiff will prevail at trial, but rather whether plaintiff's allegations state a legal claim, accepting as true all allegations in the complaint and giving the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Accepting all the stated factual allegations in the Amended Complaint as being true, the Court finds that defendant Goldin must remain a party to this litigation.
Plaintiff alleges that Goldin Sports was the vendor of the cards in question. (Pl.'s Reply Br. at 3.) The Goldin defendants argue that the vendor was Certified Collectibles. (Defs.' Br. at 3.) This Court must view all allegations in the light most favorable to the plaintiff. Applying this standard, Goldin Sports must remain a party to this litigation.
Therefore, Goldin Sports and Kenneth Goldin's motion to dismiss must be denied.
CONCLUSION
For the reasons discussed in the Opinion of today's date, the Court will grant the motion to dismiss defendant West for lack of personal jurisdiction. The Court will also will grant the motion to dismiss plaintiff's Count VIII (mandatory injunction). The motion to dismiss defendants Goldin Sports and Goldin as parties to this action will be denied. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court on Defendant West's Motion to Dismiss Donald West for Lack of Personal Jurisdiction [Docket Item 32-1] pursuant to Rule 12(b)(2), Fed.R.Civ.P.; and Defendants' Motion to Dismiss Count VII of Plaintiff's Amended Complaint and Dismiss defendants Goldin Sports Marketing and Licensing, Inc. and Kenneth Goldin, individually [Docket Item 17-1], pursuant to Rule 12(b)(6), Fed.R.Civ.R., the Court having considered the parties' submissions; and for good cause shown;
ORDERED that Defendant West's motion to dismiss for lack of personal jurisdiction [Docketed Items 32-1] be, and hereby is, GRANTED ;
IT IS FURTHER ORDERED that Defendants' motion to dismiss Count VII of Plaintiff's Amended Complaint for failure to state a claim upon which relief may be granted [Docketed Items 17-1] be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Defendants' motion to dismiss Goldin Sports Marketing and Licensing, Inc. and Kenneth Goldin, individually for failure to state a claim upon which relief may be granted, be, and hereby is, DENIED .