Opinion
Bankruptcy No. 01-14231DWS; Adversary No. 03-0220
November 18, 2003
Edmond M. George, Esquire OBERMAYER REBMANN MAXELL HIPPEL LLP, Philadelphia, PA, for Plaintiff
Jonathan K. Hollin, Esquire, King of Prussia, PA, for Defendant
MEMORANDUM OPINION
Before the Court is defendant Stockton Bates, LLP's ("Stockton") Motion to Dismiss Counts I, III, IV, and V of the Amended Complaint of the plaintiff Lawrence Lichtenstein, Trustee (the "Trustee") of the estate of Computer Personalities Systems, Inc. (hereinafter "CPSI" or the "Debtor"), pursuant to Federal Rule of Civil Procedure 12(b)(6), along with the Trustee's claim for attorneys' fees (the "Motion"). For the reasons which follow, the Motion shall be granted as to the Trustee's request for attorneys' fees.
The Motion initially sought to dismiss Count II as well. The only objection to Count II of the Amended Complaint was the Trustee's alleged failure to provide a certificate of merit as required by Pennsylvania Rule of Civil Procedure 1042.6. The certificate was apparently produced by the Trustee, as this objection was withdrawn by Stockton at the hearing on the Motion.
BACKGROUND
On March 21, 2001 (the "Petition Date"), CPSI filed a voluntary Petition for Relief under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). On May 1, 2001, CPSI's case was converted to case under Chapter 7 of the Bankruptcy Code, and the Trustee was appointed pursuant to § 701 of the Bankruptcy Code. The Trustee has brought this adversary action based on personal knowledge and beliefs formed as a result of his investigation into the business, finances, and relationship of the Debtor to creditors and other parties, and alleges as follows:
I shall take judicial notice of the docket entries in this case and this adversary proceeding. Fed.R.Evid. 201, incorporated in these proceedings by F.R.Bankr.P. 9017. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n. 3 (3d Cir. 1991);Levine v. Egidi. 1993 WL 69146, at *2 (N.D. Ill. 1993); In re Paolino, 1991 WL 284107, at *12 n. 19 (Bankr. E.D. Pa. 1991);see generally In re Indian Palms Associates. Ltd., 61 F.3d 197 (3d Cir. 1995).
The Debtor, a corporation solely owned by its principal and president, George Capell ("Capell"), was formerly engaged in the business of retail computer sales generating business through direct retail store sales and television infomercials. Amended Complaint ¶ 18. In the years 1998-99, Debtor underwent explosive growth with sales of computers and computer related equipment climbing to over $150 million in 1999. Amended Complaint ¶ 20. The Debtor had very little, if any, infrastructure and no internal controls. It had no general ledgers and its books and records were mere iterations of its bank statements. Amended Complaint ¶¶ 21-22. It had no chief financial officer.Id. ¶ 26. The Debtor had entered into a partnership with MBNA America, N.A. ("MBNA") through which consumer loans were placed, and the Debtor needed financial statements to deliver to MBNA as well as other parties. Amended Complaint ¶ 23. Capell was having difficulty "getting his arms around" the Debtor's finances and was relying on its accountant Stockton, to inform him as to the state of Debtor's records. Amended Complaint ¶ 24.
While the Amended Complaint makes reference to Mr. Capell, it does not specifically identify him. Nevertheless, there have been numerous proceedings and adversary actions in this bankruptcy case from which I take judicial notice of this fact. See, e.g., In re Computer Personalities Systems. Inc., 2002 WL 31988134 at * 1 (Bankr. E.D. Pa., Dec 23, 2002). While a court may not take judicial notice sua sponte of facts contained in the debtor's file that are disputed, In re Augenbaugh, 125 F.2d 887 (3d Cir. 1942), it may take judicial notice of adjudicative facts "not subject to reasonable dispute . . . [and] so long as it is not unfair to a party to do so and does not undermine the trial court's factfinding authority." In re Indian Palms Assoc., 61 F.3d 197, 205 (3d Cir. 1995) (citing Fed.R.Evid. 201(f) advisory committee note (1972 proposed rules)).
The Debtor retained Stockton for various accounting services, including compiling Debtor's information into financial statements, advising the Debtor on necessary internal controls, drafting and filing tax returns, and assisting the Debtor in implementing internal controls such as locating a chief financial officer. Amended Complaint ¶¶ 27. The Trustee alleges that "[s]ome of the engagements were in writing; others were performed on an `ad hoc' basis." Id. Three of the written engagements referenced in attachments to the Amended Complaint pertain to engagements for compiling information. Exhibits A-C to Amended Complaint, (the "Compilation Engagements"). With regard to the Compilation Engagements, Stockton agreed to perform in accordance with Statements on Standards for Accounting and Review Services ("SSARS") issued by the American Institute of Certified Public Accountants. Amended Complaint ¶¶ 28, 33, 36; Exhibits A-C to Amended Complaint.
Pursuant to the Compilation Engagements, Stockton subsequently issued financial statements for the Debtor for the years 1998 and 1999 (collectively, the "Financial Statements"). Amended Complaint ¶¶ 49-50; Exhibits E and F to Amended Complaint. The letters evidencing the Compilation Engagements, and the letter accompanying the 1998 Financial Statement ending December 31, 1998, contained the following language describing the parameters of a compilation engagement:
A compilation is limited to presenting in the form of financial statements information that is the representation of management. We have not audited or reviewed the accompanying financial statements [and supplementary information] and, accordingly, do not express an opinion or any other form of assurance on them.
Exhibits A, B, C, and E to Amended Complaint. The letters also stated that the Compilation Engagements "cannot be relied upon to disclose errors, fraud, or illegal acts that may exist. However, we will inform you of any such matters that come to our attention unless they are clearly inconsequential." Exhibits A, B, and C to Amended Complaint.
Exhibit E is the December 31, 1998 Financial Statement. The accompanying letter contains the additional, bracketed language. Exhibit E to Amended Complaint.
The Trustee alleges that the Financial Statements did not contain necessary disclosures, namely that Debtor's ability to continue as a going concern was in substantial doubt and it had serious internal problems and financial shortfalls. Amended Complaint ¶ 51, 57. Indeed, at the time the Financial Statements were issued, Debtor was woefully insolvent and experiencing severe cash flow problems, all of which Stockton knew or should have known. Id. ¶ 53. The Trustee further alleges that Stockton knew of Debtor's problems, yet nevertheless issued the Financial Statements, relying on Debtor's inherently unreliable records and books in violation of GAAP and SSARS.Id. ¶¶ 54, 55. As a result, the Financial Statements were materially false and misleading and did not fairly represent Debtor's financial condition. Id. ¶ 58.
Debtor and Stockton also entered into a written engagement on June 29, 2000 to audit Debtor's balance sheet as of December 31, 1999 (the "1999 Audit") in accordance with Generally Accepted Accounting Principles ("GAAP"). Amended Complaint ¶ 39; Exhibit D to Amended Complaint. The Trustee alleges that the 1999 Audit was "woefully inadequate, failed to uncover important and material transactions, and failed to uncover a complete lack of internal controls, which problems were well known to Stockton." Id. ¶ 56. Moreover, the audit figures varied "wildly" from the tax returns that Stockton prepared on Debtor's behalf.Id. ¶ 59.
The Amended Complaint alleges six separate counts against Stockton stemming from its various engagements with the Debtor: (1) negligence in preparing the 1998-99 Financial Statements; (2) negligence in preparing the 1999 Audit; (3) deepening insolvency, i.e., that Stockton's conduct prolonged Debtors' business life, which in turned caused Debtor's increased debt and exposure to creditors; (4) negligent misrepresentation; (5) common law fraud; and (6) breach of contract.
DISCUSSION
In considering a Rule 12(b)(6) motion to dismiss, a court must accept all allegations in the complaint, and all reasonable inferences that can be drawn therefrom, as true and view them in the light most favorable to the non-moving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989) (citations omitted);Aneelastro v. Prudential-Bache Securities. Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied. 474 U.S. 935 (1985). A complaint must not be dismissed for failing to state a claim unless it appears beyond reasonable doubt that plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. See City of Philadelphia v. Lead Industries Ass'n, Inc., 994 F.2d 112, 118 (3d Cir. 1993) ( citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). Moreover, in construing complaint on a motion to dismiss, courts are obligated to examine the complaint "as a whole and to base rulings not upon the presence of mere words but, rather, upon the presence of a factual situation which is or is not justifiable. We do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner." City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 262 (3d Cir. 1998). With this standard in mind, I address the bases for dismissal asserted by Stockton.
Fed.R.Civ.P. 12(b)(6) is applicable here pursuant to Rule 7012 of the Federal Rules of Bankruptcy Procedure.
I.
Stockton contends that Counts I (negligence in the Financial Statements), III (deepening insolvency), and IV (negligent misrepresentation) are precluded as a matter of law by both the "economic loss doctrine" and the "gist of the action" doctrine. The economic loss doctrine has been characterized as "prohibit[ing] plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract." Werwinski v. Ford Motor Company, 286 F.3d 661, 671 (3d Cir. 2002) ( quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618 (3d Cir. 1995)). The doctrine was first adopted by the Supreme Court in the context of an admiralty products liability case, East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295 (1986), where it held that a "manufacturer in a commercial context has no duty under either negligence or strict-liability theory to prevent a product from injuring itself." Id. at 871.106 S.Ct. at 2302. The Court was largely concerned that products liability remedies might be stretched too far, blurring the distinction between tort and contract law. "The Court observed that the need for a remedy in tort is reduced when the only injury is to the product itself. In such a situation express and implied warranties under contract law are best suited to compensate for a loss in product value." Werwinski, 286 F.3d at 671.
Stockton also asserts that Count V (fraud) is precluded by the gist of the action doctrine, but as it also attacks the sufficiency of the fraud pleading itself, I shall address this count separately.See infra § III.
The economic doctrine was adopted by the en bane Pennsylvania Superior Court in REM Coal Co. v. Clark Equipment Co., 563 A.2d 128, 134 (1989), again in the product liability context: "Negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage is to the product itself . . . the harm sought to be redressed is precisely that which a warranty action does redress." Id. at 129.
The gist of the action doctrine has some similarity to the economic loss doctrine in that it is concerned about applying tort liability to what is essentially a breach of contract claim: `"to be construed as a tort action, the [tortious] wrong ascribed to the defendant must be the gist of the action with the contract being collateral.'" See Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103 (3d Cir. 2001) ( quoting Redevelopment Auth. v. International Ins. Co., 685 A.2d 581, 590 (Pa.Super. 1996) (en bane)) (alteration in original). A claim should be limited to a contract claim when the duties of the parties are defined by the contract and not by the "larger social policies embodied in the law of torts."Id.
The crux of Stockton's argument is that, as the allegations of the Amended Complaint are based upon the contracts between the parties, only a breach of contract action should be allowed. Unfortunately, Stockton provides no Pennsylvania authority (the law which the parties agree governs here) to support that either of these doctrines is applicable to what is essentially a professional malpractice claim, which typically involves a breach of a standard of care imposed by law. Indeed, Pennsylvania law imposes the same standard of care upon accountants as it does upon attorneys: to provide services consistent with those expected of the profession at large.Official Committee of Unsecured Creditors of Corell Steel v, Fishbein and Co., P.C., 1992 WL 196768 at * 5; (E.D. Pa. Aug. 10, 1992); Koken v. Steinberg, 825 A.2d 723, 730 (Pa.Commw. 2003);Robert Wooler Co. v. Fidelity Bank, 479 A.2d 1027, 1032 ( Pa. Super. 1984). The Koken court explicitly rejected application of the gist of the action doctrine to limit a plaintiff from choosing either negligence or breach of contract claims against accountants. 825 A.2d at 729-30.
The cases relied upon by Stockton are either product liability cases, see Werwinski, supra (defective automobile transmissions), Duquesne Light Co., supra (nuclear power plant systems); Montgomery County v. Microvote Corp., 200) WL 134708 (E.D. Pa. Feb. 3, 2000) (voting machines), or cases involving contracts for nonprofessional services, which involve no duty of care imposed by law. See Constar Inc. v. National Distribution Centers. Inc., 101 F. Supp.2d 319 (E.D. Pa. June 23, 2000) (warehouse storage contracts); Hartford Fire Ins. v. Assoc. Construction and Mgt. Corp., 2000 WL 424273 (E.D. Pa. April 19, 2000) (construction services); Auger v. The Stouffer Corp., 1993 WL 264622 (E.D. Pa. Aug. 31, 1993) (hotel management services).
I note that the Court of Appeals for the Third Circuit appears to reject an expansion of the economic loss doctrine outside of the product liability realm. In Bohler-Uddeholm America. Inc. v. Ellwood Group. Inc., 247 F.3d 79 (3d Cir. 2001), the Court found that the economic loss doctrine, arising as it does out of product liability law, did "not quite fit" a claim for breach of fiduciary duty arising out of a joint venture agreement. Id. at 104 n. 11. Instead, the Court employed the gist of the action doctrine and found that the alleged breach of fiduciary duty was collateral to the joint venture agreement, giving rise to a separate cause of action. See also Public Service Enterprise Group v. Philadelphia Electric Co., 722 F. Supp. 184 (D. N.J. 1989) (rejecting economic loss doctrine applicability to nuclear power plant management services contract).
I also find persuasive the case cited by the Trustee, Congregation of the Passion v. Touche Ross Co., 636 N.E.2d 503 (Ill. 1994), where the Illinois Supreme Court explicitly rejected the economic loss doctrine as barring tort claims against accountants:
The evolution of the economic loss doctrine shows that the doctrine is applicable to the service industry only where the duty of the party performing the service is defined by the contract that he executes with his client. Where a duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in tort for the negligent breach of that duty. The present case involves professional malpractice by an accounting firm. The underlying issue is whether the duty an accountant owes to his client is defined by his contractual obligations, or is extracontractual.
. . .
"Accountants have long been held to be members of a skilled profession, and liable for their negligent failure to observe reasonable professional competence." (P. Kelly, An Overview of Accountants' Liability, 15 Forum 579, 583 (1979).) This duty to observe reasonable professional competence exists independently of any contract. The economic loss doctrine does not bar recovery in tort for the breach of a duty that exists independently of a contract.
The Court in Palco Linings. Inc. v Pavex. Inc., 755 F. Supp. 1269 (M.D. Pa. 1990) found Illinois law particularly persuasive because that jurisdiction "has exhaustively analyzed the economic loss theory in numerous contexts." Id. at 1274 n. 2.
Here the Amended Complaint alleges, not only that Stockton did not perform what it promised, but that its performance fell far below the standards imposed upon the accounting profession, including GAAP and SSARS. Under Pennsylvania law, compliance with these standards is a duty separate from the contracts between Stockton and Debtor. Absent any authority to the contrary, I see no reason why the Trustee cannot pursue both breach of contract and negligence claims against Stockton. Pennsylvania state and federal courts, including this one, have routinely allowed such claims to be brought together. See, e.g., Williams Controls. Inc. v. Parente, Randolph, Orlando, Carey Associates. 39 F. Supp.2d 517 (M.D. Pa. 1999) (involving claims of breach of contract, negligence, and negligent misrepresentation against accountants); Waslow v. Grant Thornton LLP (In re Jack Greenberg Inc.). 212 B.R. 76 (Bankr. E.D. Pa. 1997) (breach of contract, negligence, and fraud claims against debtor's accountants);Columbia Medical Group. Inc. v. Herring Roll. P.C., 829 A.2d 1184 (Pa. Super, 2003) (claims of negligence, breach of contract, gross negligence, and intentional infliction of emotional distress against accounting firm); Koken, supra (breach of contract and negligence against accountants),
II.
Count IV of the Amended Complaint asserts that Stockton's poor performance also gives rise to a claim of negligent misrepresentation, namely that: (1) Stockton issued the Financial Statements "without due care for the accuracy of the contents thereof and without due analysis of Debtor's financial condition;" (2) Stockton knew, or disregarded facts that would have allowed it to know, that the Financial Statements were inaccurate and that the information behind them was deficient and unreliable; (3) Stockton knew that the Debtor would rely upon the Financial Statements; and (4) the Debtor did in fact rely upon the Financial Statements. Amended Complaint ¶¶ 106-113.
Stockton moves to dismiss Count IV, asserting that the Amended Complaint fails to allege the requisite element of justifiable reliance. The basis of Stockton's argument is the language from the engagement letters, quoted above, which states that a compilation is an unaudited statement based on the representations of Debtor's management and that Stockton does not therefore express an opinion or any other form of assurance on the Financial Statements. Stockton argues that, based on this language, the Debtor could not justifiably rely upon the Financial Statements as a matter of law.
The elements of a claim of negligent misrepresentation are: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury was proximately caused by the reliance.Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999).
Stockton provides no Pennsylvania authority for this proposition, but my own research indicates that Pennsylvania law is to the contrary. In Robert Wooler Co., supra, the Pennsylvania Superior Court defined unaudited accounting services as services in which "the accountant does not warrant and is not responsible for the ultimate accuracy of the report if the figures supplied by the client are erroneous." 479 A.2d at 1030. The language that Stockton points to as its disclaimer is essentially the same description of an unaudited accounting service utilized by the Wooler Court. Nevertheless, that Court held that, absent specific language in the agreement relieving it from acts of negligence, an accountant can still be held liable for failing to call its client's attention to suspicious circumstances which would raise "red flags" for reasonably skilled accountants. Id. at 1032. Of relevance here, I note that the Court also found that:
Stockton cites only to case law outside this jurisdiction:Dakota Bank v. Eiesland, 645 N.W.2d 177 (Minn.App. 2002);First Nat. Bank of Newton County v. Soarkmon, 442 S.E.2d 804 (Ga.App. 1994); and Ris v. Finkle, 561 N.Y.S.2d 499 (N.Y.Sup. 1989).
Thus, while Stockton uses the term of art, "disclaimer," I do not view this language as anything more as is description of a compilation, namely an unaudited accounting service. Certainly the Compilation Engagement letters do not use the term of art, "disclaimer," nor is the quoted language set apart or highlighted so as to call attention to it.
When Touche Ross agreed to provide unaudited accounting services for Wooler, it undertook to exercise that degree of accounting skill possessed by other accountants in the community. Touche Ross' obligation required that its personnel be reasonably alert to internal control defects which were patently obvious.
Id. Thus, it appears that the statement that Stockton relies upon as insulating it from suit is insufficient by itself to dictate a dismissal of this Count.
Here the Trustee has alleged that the Debtor had a complete lack of internal controls, that its principal had no clear grasp of the Debtor's financial condition, that the Debtor's records and books were inherently unreliable. Moreover, he alleges Stockton should have alerted Debtor of these shortcomings rather than issue the Financial Statements, which contained a false financial picture of the company. The Trustee will be permitted to attempt to prove whether these allegations could qualify as the "suspicious circumstances" that should have raised "red flags" for Stockton and a concomitant duty to inform Debtor.
Absent language shielding Stockton from its own negligence, as required by Pennsylvania law, Stockton cannot rely upon the fact that the Compilation Engagements were expressly to be unaudited services. Even where an accountant specifically does not express an opinion or warrant the accuracy of the information given to it by its client, it nevertheless has a duty to point out suspicious circumstances which would raise red flags for any reasonable accountant. The Trustee has alleged Debtor's justifiable reliance, not upon the accuracy of the Financial Statements, but upon Stockton complying with its common law duty to inform.
III.
Count V of the Amended Claim alleges common law fraud. Stockton brings forth several arguments for dismissal of this count: (1) the Amended Complaint does not allege fraud with the specificity required under Fed.R.Civ.P. 9(b), applicable in adversary proceedings through F.R.Bankr.P. 7009; (2) the Amended Complaint fails to plead justifiable reliance; and (3) a claim of fraud is precluded under the gist of the action doctrine.
Independent of the dismissal standard under Rule 12(b), Rule 9(b) requires: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). Under Rule 9(b), a plaintiff alleging fraud must plead: "`(1) a specific false representation of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage.'" Sun Co., Inc. (R M) v. Badger Design Constructors. Inc., 939 F. Supp. 365 (E.D. Pa. 1996) ( quoting Shapiro v. UJB Fin. Corp., 964 F.2d 272, 284 (3d Cir. 1992)).
Stockton asserts generally that the Amended Complaint fails to plead these elements, without identifying specific defects in the pleading, although it does assert as an example that no specific false representation is identified. I respectfully disagree. Count IV alleges generally that the Financial Statements did not accurately portray the Debtor's financial condition and specifically that the statement for the year ending 1998 showed a positive cash flow, which was not the case. Thus, false representations are alleged. Moreover, the Trustee alleges that Stockton recklessly disregarded facts which showed that Debtor was in dire financial straits. Under Pennsylvania law, the scienter element of fraud may be met by pleading actual knowledge or reckless indifference to the truth. Wittekamp v. Gulf Western. Inc., 991 F.2d 1137, 1142 (3d Cir. 1993); Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1071 (Pa.Super. 2003). The latter has been adequately pled here. The Trustee also alleges that the Debtor's books and records were in a state of disarray and that its principal, George Capell, had no grasp of the company's financial condition, i.e. that the Debtor lacked knowledge of the falsity of the Financial Statements. Finally, the Amended Complaint alleges that Stockton intended the Debtor to act on the Financial Statements, which the Debtor did by continuing to operate as a going concern, thus driving itself into deeper insolvency. The Trustee has adequately pled all the elements of a fraud claim required under Rule 9(b).
Moreover, I also disagree for the same reasons discussed above that the fraud claim should be dismissed for failure to plead justifiable reliance and under the gist of the action doctrine. See supra §§ I, II. Read as a whole, the Amended Complaint alleges at a minimum that the Debtor justifiably relied upon the fact that Stockton would meet the minimum requirements of professionalism for accountants and that it would inform Debtor of its dire financial straits rather than issue the misleading Financial Statements. The common law fraud claim clearly stems from Stockton's alleged reckless disregard of its duty to follow a standard of care as an accountant, a duty which is collateral to the contracts between the Debtor and Stockton and therefore brings the claim outside the gist of the action doctrine.
Again, I find Stockton's citation to outside authority for this argument to be unpersuasive given its agreement that Pennsylvania law governs the claims in the Amended Complaint.
V.
Finally, Stockton moves to strike any request for attorneys' fees and costs from the Amended Complaint. I noted at the hearing on the Motion, and the Trustee agreed, that the general rule in American jurisprudence is that each party shall bear the cost of their own attorneys' fees.Aleyska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). While attorneys' fees may be awarded to the prevailing plaintiff as part of a statutory scheme all of the Counts of the Complaint advance common law claims that contain no provisions for attorneys' fees. The request for attorneys' fees is stricken from the Amended Complaint.
An Order consistent with this Memorandum Opinion shall be entered.ORDER AND NOW, this 18th day of November 2003, upon consideration of the defendant Stockton Bates, LLP's ("Stockton") Motion to Dismiss Counts I-V of the Amended Complaint along with the claims for attorneys' fees pursuant to Fed.R.Civ.P. 12(b)(6), and after a hearing with notice and for the reasons set forth in the accompanying Memorandum Opinion;
It is hereby ORDERED that the Motion is GRANTED In Part and DENIED In Part as follows:
1. The request to dismiss Counts I-V is DENIED;
2. The request to dismiss the claims for attorneys' fees is GRANTED. The claim for attorneys' fees is STRICKEN from the Amended Complaint.