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Brad Klinge v. KBL Associates, LLC, et al.

U.S.D.C. (W.D. Tex.) No. 5:20-cv-470-XR

Motion to Dismiss Counterclaims

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

BRAD KLINGE PLAINTIFF

vs. No. 5:20-cv-470-XR 

KBL ASSOCIATES, LLC, and DEFENDANTS

KIMBERLY LEATHERWOOD 

MOTION TO DISMISS COUNTERCLAIMS

COMES NOW Plaintiff Brad Klinge, by and through his attorney Josh Sanford of 

the Sanford Law Firm, PLLC, and for his Motion to Dismiss Counterclaims of Defendant

KBL Associates, LLC (“Defendant”), he does state and allege as follows:

1. In this case, Plaintiff seeks recovery under the Fair Labor Standards Act, 

29 U.S.C. § 201, et seq. (“FLSA”), based on Defendant’s failure to lawfully pay Plaintiff. 

ECF. No. 1.

2. Defendant filed its Counterclaims (ECF No. 6) alleging state law-based

fraud, breach of fiduciary duty, conversion and unjust enrichment claims.

3. The counterclaims raised by Defendant are not allowed in FLSA overtime 

cases and Defendant’s Counterclaims should be dismissed.

4. Because the Counterclaims asserted by Defendant are not permissible in 

the context of FLSA-based litigation, this Court does not have jurisdiction over the 

Counterclaims. Therefore, Defendant’s Counterclaims must be dismissed pursuant to 

Fed. R. Civ. P .12(b)(1).

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5. Additionally, the Counterclaims asserted by Defendant fail to state facts 

upon which relief can be granted. Therefore, Defendant’s Counterclaims must be 

dismissed pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b).

WHEREFORE, premises considered, Plaintiff Brad Klinge prays that the Court 

dismiss Defendant’s Counterclaims; for his costs and a reasonable attorney’s fee; and 

for all other just and proper relief to which he may be entitled.

BRIEF IN SUPPORT

Defendant’s Counterclaims should be denied and dismissed because the claims 

stated therein are exactly of the type generally held to be impermissible in an action 

under the FLSA. Plaintiff brings this motion seeking to dismiss the Counterclaims for 

failure to state a claim under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). As the Counterclaim 

is pled, it asserts facts but no cause of action against Plaintiff, and this Court does not 

have jurisdiction over the claims.

A. This Court should dismiss Defendant’s Counterclaims for lack of 

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Defendant’s Counterclaims are based on what it alleges are falsely reported 

hours to Defendant and its customers (fraud, unjust enrichment and breach of fiduciary 

duty) and Plaintiff’s purported possession of Defendant’s property (conversion and 

unjust enrichment). Defendant’s Counterclaims should be dismissed because these 

types of state-law claims are wholly impermissible in an FLSA proceeding. As discussed

below, Courts have held as a matter of law that the types of claims brought by 

Defendant should not be pursued in cases brought under the FLSA because they 

violate the public policies behind the FLSA. Some courts have used this standard to 

dismiss such counterclaims based upon lack of supplemental jurisdiction, while other 

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Motion to Dismiss Counterclaims

courts dismiss such counterclaims without reference to jurisdictional issues, but it is 

well-settled in the Fifth Circuit that cases involving unpaid wages should exclusively 

examine wage claims. 

1. Defendant’s Counterclaims are not compulsory.

Rule 13 provides for two categories of counterclaims: compulsory and 

permissive. F. R. Civ. P. 13(a)–(b). A claim “arising out of the transaction or occurrence 

that is the subject matter of the opposing party’s claim” must be asserted in a 

counterclaim or it is considered waived pursuant to Rule 13(a). Id.; see also Poole v. 

Dhiru Hosp., LLC, Civil Action No. SA-18-CV-636-XR, 2019 U.S. Dist. LEXIS 138081, at 

*22-29 (W.D. Tex. Aug. 15, 2019). The Fifth Circuit has created the “logical relation” test 

to determine whether a claim meets this criterion. Ormet Primary Aluminum Corp. v. 

Ballast Techs., Inc., 436 Fed. Appx. 297, 299 (5th Cir. 2011). In evaluating whether a 

claim is compulsory, Courts consider the following:

(1) whether the issues of fact and law raised by the claim and 

counterclaim largely are the same; (2) whether res judicata would bar a 

subsequent suit on defendant's claim absent the compulsory counterclaim 

rule; (3) whether substantially the same evidence will support or refute 

plaintiff's claim as well as defendant's counterclaim; and (4) whether there 

is any logical relationship between the claim and the counterclaim

Poole, 2019 U.S. Dist. LEXIS 138081, at *22.

Defendant’s fraud, conversion, breach of fiduciary duty and unjust enrichment 

claims do not meet the logical relation test. None of the facts alleged in Plaintiff’s 

Complaint and Defendant’s Counterclaims overlap, and neither do the legal standards 

involved in evaluating each claim. The elements of res judicata are as follows: “(1) a 

prior final judgment on the merits by a court of competent jurisdiction; (2) identity of 

parties or those in privity with them; and (3) a second action based on the same claims 

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as were raised or could have been raised in the first action.” Steger v. Muenster Drilling 

Co., Inc., 134 S.W.3d 359, 368 (Tex. App.—Fort Worth 2003, pet. denied). Although the 

parties to the Complaint and Counterclaims may be the same, a ruling on whether 

Defendant paid Plaintiff a lawful minimum wage and overtime rate does not involve a 

final judgment on the accuracy of statements made by Plaintiff to Defendant, the duty 

owed by Plaintiff to Defendant, or the return of personal property allegedly belonging to 

Defendant. Therefore, there is no concern that Defendant cannot separately litigate its

state law claims in an appropriate forum.

Plaintiff’s FLSA claims will necessarily involve evidence focusing on his hours 

worked and payment received. Defendant’s counterclaims focus on wholly separate 

issues and agreements, including Plaintiff’s alleged retention of a company computer

and his alleged improper billing of Defendant’s customers. These claims will include an 

entirely different set of evidence. While Plaintiff’s claims will require close examination 

of his time sheets, pay roll, and personal testimony, Defendant’s evidence will rest on 

computer data, billing invoices, employment agreements, statements made by Plaintiff 

to Defendant, and fiduciary obligations owed by Plaintiff to Defendant. See Beck v. 

Access eForms, LP, Civil Action No. 4:16-cv-985, 2018 U.S. Dist. LEXIS 1690, at *12 

(“Defendant's counterclaims will require a different body of evidence to be proven and 

they do not share common facts with the FLSA claims.”). Indeed, the only relation 

between Defendant’s and Plaintiff’s claims is their employer-employee relationship, a 

nexus which is insufficient for a Court to exercise either compulsory or permissive 

jurisdiction over. Id., at *12–13 (citing Cordero v. Voltaire, LLC, No. A-13-CA-253-LY, 

2013 U.S. Dist. LEXIS 172532 (W.D. Tex. Dec. 6, 2013)).

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2. Defendant’s Counterclaims are not permissive and the Court should 

decline to exercise supplemental jurisdiction.

“Permissive counterclaims must either be supported by independent grounds of 

federal jurisdiction or fall within the supplemental jurisdiction of the court under 28 

U.S.C. § 1367.” Poole, 2019 U.S. Dist. LEXIS 138081, at *22. Defendant does not 

allege any independent grounds of federal jurisdiction for its state law claims. Section 

1367 permits supplemental jurisdiction over all counterclaims, regardless of whether the 

claims are deemed compulsory or permissive, that “are so related to the claims in the 

action within such original jurisdiction that they form a part of the same case or 

controversy.” 28 U.S.C. § 1367(a). Even where federal courts otherwise have 

supplemental jurisdiction, they may decline to exercise that supplemental jurisdiction if: 

1) the claim raises a novel or complex issue of State law; 2) the claim 

substantially predominates over the claim or claims over which the district

court has original jurisdiction; 3) the district court has dismissed all claims 

over which is has original jurisdiction; or 4) in exceptional circumstances, 

there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

While frequently addressed in the context of “set-off,” counterclaims of the type 

filed by Defendant have been held by numerous courts in the Fifth Circuit, including in 

this district, to be impermissible in cases arising under the FLSA.1Indeed, the Fifth 

Circuit explicitly disfavors these types of counterclaims against employees because 

“[t]he federal courts were not designated by the FLSA to be either collection agents or 

arbitrators for an employee’s creditors.” Brennan v. Heard, 491 F.2d 1, 4 (5th Cir. 1974); 

1 See, e.g., Henderson v. Dat Dog Enters., LLC, No. 17-17654, 2019 U.S. Dist. LEXIS 

4734, at *9 (E.D. La. Jan. 10, 2019); Hiser v. Guidance, No. 1:18-CV-1056-RP, 2019 U.S. Dist. LEXIS 

83225, at *5 (W.D. Tex. Apr. 23, 2019); Poole v. Dhiru Hosp., LLC, Civil Action No. SA-18-CV-636-XR, 

2019 U.S. Dist. LEXIS 138081, at *22-29 (W.D. Tex. Aug. 15, 2019); Beck v. Access eForms, LP, Civil 

Action No. 4:16-CV-00985, 2018 U.S. Dist. LEXIS 1690, at *11-14 (E.D. Tex. Jan. 4, 2018); Lund v. HovÉ 

Parfumeur, Inc., No. 18-6061, 2018 U.S. Dist. LEXIS 203229, at *4-6 (E.D. La. Nov. 29, 2018).

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see also Martin v. PepsiAmericas, Inc., 628 F.3d 738, 741 (5th Cir. 2010). Such set-offs 

are “inappropriate in any proceeding brought to enforce the FLSA minimum wage and 

overtime provisions” because the minimum wage required under the FLSA should be 

paid “free and clear,” and the individual worker should have both the freedom and 

responsibility of allocating those wages among competing personal and economic 

interests. Brennan, 491 F.2d at 3–4. Further, the very nature of counterclaims 

surrounding issues other than minimum wage and overtime are “antithetical” to the 

purpose of the FLSA: “Arguments and disputations over claims against . . . wages are 

foreign to the genesis, history, interpretation, and philosophy of the [FLSA]. The only 

economic feud contemplated by the FLSA involves the employer’s obedience to 

minimum wage and overtime standards.” Id. at 4.

The Fifth Circuit has recognized one very narrow exception to the prohibition on 

employer counterclaims against an employee’s wages. See Martin v. PepsiAmericas, 

Inc., 628 F.3d 738, 741–742 (5th Cir. 2010); Singer v. City of Waco, 324 F.3d 813 (5th 

Cir. 2003). In Martin, the Fifth Circuit determined that counterclaims are only permitted 

when “the money being set-off can be considered wages that the employer pre-paid to 

the plaintiff-employee” or money that could be “characterized as advanced or 

inappropriate amounts subject to an offset.” 628 F.3d at 742.

This Court should decline to exercise supplemental jurisdiction over Defendant’s 

counterclaims. As stated earlier, Defendant’s claims for allegedly making fraudulent 

statements, overbilling clients, and withholding personal property are not so related to 

Plaintiff’s FLSA claims that they are part of the same controversy. Defendant’s 

conversion claim and part of its unjust enrichment claim rests on Plaintiff’s alleged 

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Motion to Dismiss Counterclaims

retention of a company computer, and its breach of fiduciary duty claim is premised on 

Plaintiff’s alleged wrongful billing of Defendant’s customers. None of these claims arise 

out of Plaintiff’s job duties, the number of hours he worked, or whether he was properly 

paid. See Rodriguez v. Horizontal Rentals, Inc., No. 5:18-cv-7-OLG, 2018 U.S. Dist. 

LEXIS 226663, at *7 (W.D. Tex. May 9, 2018) (“The damages alleged in connection 

with these claims bear no relationship to the hours worked, Plaintiff's status as an 

exempt or non-exempt employee, or any overtime premium owed.”). Defendant’s claims

will require a different body of evidence to prove claims wholly unrelated to Plaintiff’s. 

Further, “[t]here are strong policy reasons for declining supplemental jurisdiction” 

because “[t]he exercise of supplemental jurisdiction in this case would chill the 

effectiveness of the FLSA.” Beck, 2018 U.S. Dist. LEXIS 1690, at *13 (citing Barcena v. 

Tam Fin. Corp., No. EP- 07-CA-20-KC, 2007 U.S. Dist. LEXIS 38674 (W.D. Tex. May 8, 

2007)). Defendant’s counterclaims are the very types of counterclaims courts are 

hesitant to find supplemental jurisdiction over in FLSA cases. See, e.g., Poole, 2019 

U.S. Dist. LEXIS 138081, at *29 (dismissing the defendant’s counterclaims for fraud 

alleging the plaintiffs have double-billed the defendant’s clients); Henderson v. Dat Dog 

Enters., LLC, No. 17-17654, 2019 U.S. Dist. LEXIS 4734, at *13 (E.D. La. Jan. 10, 

2019) (declining to exercise supplemental jurisdiction over the defendant’s unjust 

enrichment claims alleging the plaintiffs’ retention of unreported tips). Indeed, 

Defendant’s conversion and breach of fiduciary duty claims are the types of claims that 

will predominate over Plaintiff’s FLSA claims: Plaintiff’s sober yet far-reaching wage 

claims will be buried under Defendant’s titillating images of wrongdoing and evil intent 

that are inherent in allegations of conversion and breach of fiduciary duty. 

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Motion to Dismiss Counterclaims

To the extent Defendant’s unjust enrichment and/or fraud claims for allegations 

of falsified time sheets can be reformed into a claim for set-off falling within the narrow 

exception of Martin, the Court should decline to do so. This issue can be addressed 

through Defendant’s assertion of offset as an affirmative defense. Def. KBL Assocs. 

LLC’s Answer and Affirmative Defenses to Pl.’s Compl. and Countercl. (“Counterclaim”), 

p. 6–7, ¶ 8, 11. ECF No. 6.

Ultimately, while courts may differ somewhat in their approaches to addressing 

an employer’s counterclaims in an FLSA case, it is clear that this Court lacks jurisdiction 

to hear Defendant’s Counterclaims under any standard. There is no basis for original 

jurisdiction, and supplemental jurisdiction does not exist as the claims clearly do not 

arise out of the same case or controversy. Moreover, if the Counterclaims were to go to 

trial, Plaintiff would be prejudiced by the finder of fact being presented with wholly 

irrelevant and false accusations of improper behavior by Plaintiff which could potentially 

confuse the finder of fact and improperly affect a decision on Plaintiff’s FLSA claim. This 

Court should therefore decline to exercise supplemental jurisdiction and Defendant’s 

Counterclaims should be dismissed.

B. This Court should dismiss Defendant’s Counterclaims for failure to 

state a claim pursuant to Rules 12(b)(6) and 9(b). 

Additionally, this Court should dismiss Defendant’s counterclaims against Plaintiff 

for failure to state a claim under Rules 12(b)(6) and 9(b). Dismissal pursuant to Rule 

12(b)(6) is disfavored, and courts must accept all well-pled facts as true and view them 

in the light most favorable to the non-movant. Baker v. Putnal, 75 F.3d 190, 196 (5th 

Cir. 1996). However, the pleadings must provide specific facts rather than conclusory 

allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 

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1992). While “detailed factual allegations” are unnecessary, the pleader must provide 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause 

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). See also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true 

all of the allegations contained in a complaint is inapplicable to legal conclusions.”). 

Thus, a complaint fails under Rule 12(b)(6) when it does not plead “enough facts to 

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

1. Defendant’s fraud Counterclaim fails under Rules 12(b)(6) and 9(b).

A dismissal pursuant to Rule 9(b) for failure to plead fraud with particularity is 

treated the same as a Rule 12(b)(6) dismissal for failure to state a claim. Lovelace v. 

Software Spectrum, 78 F.3d 1015, 1017 (5th Cir. 1996). However, Rule 9(b) requires a 

heightened pleading standard when making claims for fraud, and the pleader must 

plead the circumstances with particularity. Fed. R. Civ. P. 9(b); City of Clinton, Ark. v. 

Pilgrim's Pride Corp., 632 F.3d 148, 153 (5th Cir. 2010). The pleader must therefore 

“specify the statements contended to be fraudulent, identify the speaker, state when 

and where the statements were made, and explain why the statements were 

fraudulent.” Williams v. WMX Techs., 112 F.3d 175, 177 (5th Cir. 1997). “Put 

simply, Rule 9(b) requires ‘the who, what, when, where, and how’ to be laid 

out.” Benchmark Electronics, Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)

(quoting Williams, 112 F.3d at 179).

Common law fraud claims brought in federal court are subject the heightened 

pleading requirements of Rule 9(b). Miller v. CitiMortgage, Inc., 970 F. Supp. 2d 568, 

582 (N.D. Tex. 2013). Thus, in order to successfully plead fraud, Defendant must 

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demonstrate with particularity the following: (1) the Plaintiff made a representation to 

Defendant; (2) the representation was material; (3) the representation was false; (4) 

when Plaintiff made the representation, Plaintiff knew it was false or made the 

representation recklessly and without knowledge of its truth; (5) Plaintiff made the 

representation with the intent that Defendant would act on it; (6) Defendant relied on the 

representation; and (7) the representation caused Defendant injury. See Shandong 

Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032-33 (5th Cir. 

2010) (stating the elements of Texas fraud claims) (citing Ernst & Young, L.L.P. v. 

Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).

Defendant’s fraud claim does not meet the heightened pleading standard 

required by Rule 9(b). While Defendant states that Plaintiff submitted falsified and 

inflated hours worked on his time sheets, Defendant provides no particularity regarding 

the “when, where, and how” of its fraud claim. Notably absent from Defendant’s claims 

are any statements regarding how his time was recorded, how he submitted his time to 

Defendant, which of his time sheets were falsified, how many times the falsified time 

sheets were submitted and paid, or how Defendant became aware of the falsified time. 

Defendant fails to point to any specific instance where the fraud it alleges actually 

occurred. Defendant merely makes the bald assertion that it happened without providing 

any factual detail. Counterclaim, p. 9–11, ¶ 10–24. ECF No. 6. These conclusory 

allegations are the type of pleading Rule 9(b) is intended to prevent: Plaintiff brings a 

claim for unpaid overtime wages, and Defendant’s immediate defense is to make 

unsupported claims that Plaintiff lied about his time. Defendant’s fraud claims should be 

dismissed for failure to make a claim.

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2. Defendant’s remaining claims fail under Rule 12(b)(6).

Defendant’s other claims of breach of fiduciary duty, conversion and unjust 

enrichment must likewise be dismissed pursuant to Rule 12(b)(6). While not subject to 

the heightened scrutiny required by Rule 9(b), Defendant’s claims must still be “facial[ly] 

plausible” by demonstrating “more than a sheer possibility that a defendant has acted 

unlawfully.” Iqbal, 556 U.S. at 678 (citations omitted).

To successfully plead breach of fiduciary duty, Defendant must show “(1) a 

fiduciary relationship between the plaintiff and defendant; (2) the defendant must have 

breached his fiduciary duty to the plaintiff; and (3) the defendant's breach must result in 

injury to the plaintiff or benefit to the defendant.” Jones v. Blume, 196 S.W.3d 440, 447 

(Tex. App. 2006). While Texas law recognizes a fiduciary duty between employees and 

employers, that duty is tempered by the nature of the employment relationship including 

the employee’s duties and responsibilities and his position within the company. See

Salas v. Total Air Servs., LLC, 550 S.W.3d 683, 692 (Tex. App. 2018). Notably absent 

from Defendant’s counterclaim are any facts demonstrating the level of duty Plaintiff 

owed Defendant. Defendant simply makes the conclusory statement that “Plaintiff and 

Defendant were in a fiduciary relationship.” Counterclaim, p. 11, ¶ 28. This bald 

assertion of a fiduciary relationship does not provide enough facts to make the claims 

plausible on their face. Twombly, 550 U.S. at 570. Also completely lacking is any 

explanation of the alleged injury suffered by Defendant for this claim. Plaintiff is unable 

to determine whether Defendant’s purported injury is monetary, reputational, or some 

other form of damage. The lone allegation that Defendant was injured is a restatement 

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of the element of the claim and not a fact upon which the Court can determine a 

plausible claim exists.

Defendant’s conversion claims fail for the same reasons as stated above. 

“Conversion is the unauthorized and wrongful assumption and exercise of dominion and 

control over the personal property of another to the exclusion of, or inconsistent with, 

the owner's rights.” Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758-59 (Tex. App. 

2008) (citing Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). A 

successful claim for conversion must prove: (1) a party owned or had legal possession 

of property or entitlement to possession; (2) the other party unlawfully and without 

permission assumed and exercised dominion and control over the property to the 

exclusion of, or inconsistent with, the original party’s rights as an owner; (3) the other 

party demanded return of the property; and (4) the party refused to return the 

property. Id. (citing Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex. App. 

2004)). Fatally absent from Defendant’s claims for conversion is any statement alleging 

Defendant demanded return of the property from Plaintiff or any other details 

surrounding Plaintiff’s retention of Defendant’s computer. Defendant merely states that 

“[t]o date, Plaintiff has not return [sic] KBL property, including the computer, to KBL.” 

Counterclaim, p. 9, ¶ 8. Moreover, Defendant does not describe the value of the 

property it alleges was converted with any specificity. Also absent from Defendant’s

allegations are facts relating to damages, and therefore, no factual allegations of 

proximate cause.

Finally, Defendant’s unjust enrichment claims must likewise be dismissed. “An 

action for unjust enrichment is based upon the equitable principle that a person 

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receiving benefits which were unjust for him to retain ought to make 

restitution.” Bransom v. Standard Hardware, 874 S.W.2d 919, 927 (Tex. App. 1994)

(citing Corpus Christi v. S. S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. 

App. 1987)). Recovery for unjust enrichment is “based on fundamental principles of 

justice or equity and good conscience which give rise to an implied or quasi-contract to 

repay.” Id. (citing Allen v. Berrey, 645 S.W.2d 550, 553 (Tex. App. 1982)). “A right of 

recovery under unjust enrichment is essentially equitable and does not depend upon the 

existence of a wrong.” Id. (citing Fun Time Ctrs., Inc. v. Cont'l Nat'l Bank, 517 S.W.2d 

877, 884 (Tex. Civ. App. 1974)). Defendant’s claims for unjust enrichment fail to 

describe with any particularity the circumstances giving rise to Plaintiff’s enrichment. As 

with Defendant’s claims for fraud, Defendant fails to provide any facts stating how 

Plaintiff was unjustly enriched, how often it occurred, or any amount for which he was

unjustly enriched. 

C. Conclusion

Defendant’s allegations do not meet any of the Fifth Circuit tests for a 

compulsory counterclaim or permissible counterclaim. Thus, this Court does not have 

subject matter jurisdiction over Defendant’s Counterclaims and they should be 

dismissed pursuant to Rule 12(b)(1). Alternatively, Defendant’s allegations are not 

supported by facts and do not constitute actionable claims, therefore the Counterclaims

must be dismissed for failure to state a claim pursuant to Rule 12(b) and 9(b).

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Respectfully submitted,

PLAINTIFF BRAD KLINGE

SANFORD LAW FIRM, PLLC

One Financial Center

650 S. Shackleford, Suite 411

Little Rock, Arkansas 72211

Telephone: (501) 221-0088

Facsimile: (888) 787-2040

/s/ Josh Sanford

Josh Sanford

Tex. Bar No. 24077858

josh@sanfordlawfirm.com

CERTIFICATE OF SERVICE

I, Josh Sanford, do hereby certify that on the date imprinted by the CM/ECF 

system, a true and correct copy of the foregoing MOTION TO DISMISS was filed via the 

CM/ECF system, which will provide notice to the attorneys named below:

Stephen C. Jackson, Esq.

Maynard Cooper & Gale, P.C.

1901 Sixth Avenue North

Regions Harbert Plaza, Suite 2400

Birmingham, Alabama 35203

Telephone: 205-254-1000

Facsimile: 205-254-1999

sjackson@maynardcooper.com

/s/ Josh Sanford

Josh Sanford

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