-1‐ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

CHARLES HESS, MARTY HIGGINS, 

ROBERT “GLEN” MCCORMICK, RONALD 

PAPA, FRANK SHERA and AL 

TORNQUIST 

Plaintiffs, 

vs. 

BIOMET, INC. and ZIMMER BIOMET 

HOLDINGS, INC. 

Defendants. 

)

)

)

)

)

)

)

)

)

)

)

)

)

NO. 3:16–CV-208 

OPINION AND ORDER

 This matter is before the Court on Defendant Biomet, Inc., 

and Zimmer Biomet Holdings, Inc.’s Motion to Dismiss (DE #18), 

filed on May 26, 2016. For the reasons set forth below, 

Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN 

PART. Counts II, III, V, and VI are DISMISSED. Counts I and IV 

remain pending. 

BACKGROUND 

Plaintiffs Charles Hess, Marty Higgins, Robert McCormick, 

Ronald Papa, Frank Shera and Al Tornquist (together, "Plaintiffs") 

were each successful sales representatives with the medical device 

company Zimmer Holdings Inc. ("Zimmer") by 1980. (DE #1, ¶14.) 

Defendant Biomet, Inc. ("Biomet") is a medical device company that 

competed with Zimmer. (Id.) Between 1980 and 1983, Biomet 

allegedly enticed Plaintiffs to leave Zimmer and join Biomet by 
-2‐ 

offering them agreements that included a retirement-income program 

in the form of lifetime commissions on all products sold in their 

sales territories. (Id.) Upon Plaintiffs’ retirements from 

Biomet, Biomet paid them commissions on products sold in their 

former territories. (Id., ¶¶16-17.) Plaintiffs recently 

discovered that those commission payments were based on some, but 

not all, Biomet products sold in those territories. (Id. ¶18.) 

In 2015, Biomet and Zimmer merged, and became Defendant Zimmer 

Biomet Holdings, Inc. ("Zimmer Biomet"). (Id., ¶19.) Since the 

merger, Zimmer Biomet has allegedly repudiated its obligations to 

Plaintiffs under the agreements. (Id.) 

The Complaint alleges six causes of action against Biomet and 

Zimmer Biomet (together, “Defendants”): (1) breach of contract 

for failing to pay Plaintiffs commissions on all Biomet products 

sold in their former territories; (2) breach of contract and 

implied covenant of good faith and fair dealing for spinning-off, 

re-branding, substituting and otherwise discontinuing Biomet 

products; (3) breach of contract and implied covenant of good faith 

and fair dealing against Zimmer Biomet for failing to pay 

Plaintiffs commissions on all products sold by Biomet or Zimmer 

Biomet in their former territories; (4) violations of Indiana Code 

sections 34-24-3-1 and 35-43-5-3 for knowingly or intentionally 

making false or misleading commission statements with the intent 

to underpay Plaintiffs; (5) theories of de facto merger, mere 
-3‐ 

continuation, alter ego, and piercing the corporate veil; and (6) 

declaratory judgment. Defendants move to dismiss the Complaint in 

its entirety. 

DISCUSSION 

Facts 

Plaintiffs are former sales representatives of Zimmer. (DE 

#1, ¶14.) Between 1980 and 1983, Biomet offered each of Plaintiffs 

an exclusive distributorship agreement ("Distributorship 

Agreements") to leave Zimmer and work for Biomet. (Id.) The 

Distributorship Agreements included a promise of a retirementincome program in the form of lifetime commissions on all products 

sold in Plaintiffs’ sales territories. (Id.) Plaintiffs accepted 

Biomet’s offer, and their contributions were instrumental in 

Biomet’s success in growing into a dominant player in the 

musculoskeletal healthcare industry. (See id., ¶15.) Between 

1996 and 2005, Plaintiffs retired from Biomet. (Id., ¶16.) Upon 

retirement, Plaintiffs each signed agreements terminating their 

distributorships and acknowledging the survival and continuation 

of their retirement-income program established under the 

Distributorship Agreements, and its applicability to Biomet’s 

successors and assigns ("Termination Agreements"). (Id.) The 

Distributorship Agreements and Termination Agreements (together, 

"Agreements") allegedly entitle Plaintiffs to be paid a retirement 
-4‐ 

commission on all Biomet products sold in their former territories. 

(Id., ¶¶17, 37.)1

Following Plaintiffs’ retirement, Biomet paid Plaintiffs 

retirement commissions, and sent them semi-monthly payments along 

with statements purporting to show the commissions owed. (Id., 

¶¶17, 42-46.) These statements originally set forth a single 

dollar amount showing the total commission payment; years later, 

the statements included some additional information. (Id.) 

Plaintiffs allege that they did not know, and could not tell from 

these statements, that the commission payments failed to pay them 

for all Biomet product sales from their former territories. (Id., 

¶¶43, 44.) Plaintiffs relied on the accuracy and comprehensiveness 

of this information, believing that Biomet was honoring its 

obligation under the Agreements by properly calculating and paying 

their retirement commissions. (Id., ¶¶ 17, 40.) Plaintiffs 

“recently” discovered that Biomet had only been paying them 

commissions on its joint reconstructive products, rather than all 

of its products, and that Biomet allegedly had been concealing the 

                                                            

1 Plaintiffs did not attach copies of the Agreements to the 

Complaint, citing the Agreements’ confidentiality provisions. (DE 

#1, ¶16 n.1.) After Defendants filed the instant motion to 

dismiss, the parties stipulated to the public filing of the 

Agreements. (DE #22 at 11 n.2; DE #22-12.) Plaintiffs filed 

copies of the Agreements in opposition to the motion. (See DE 

##22-1 - 22-11.) 
-5‐ 

underpayments through misleading and incomplete commission 

statements. (Id., ¶¶18, 39-41.) 

On June 24, 2015, Biomet and Zimmer merged, and became Zimmer 

Biomet. (Id., ¶58.) Zimmer Biomet holds itself out to the public 

as the combination of Zimmer and Biomet, and is controlled and 

directed by a management team drawn from senior executives from 

Zimmer and Biomet. (Id., ¶¶22, 58-78.) Post-merger, Biomet and 

Zimmer Biomet allegedly spun off, re-branded, or discontinued 

Biomet products in favor of substitute Zimmer or Zimmer Biomet 

products, thereby reducing the Biomet products on which 

commissions are paid. (Id., ¶21.) Plaintiffs believe they have 

only been paid commissions on a subset of Biomet’s total product 

line, and no commissions on the Zimmer or Zimmer Biomet product 

lines. (Id., ¶48.) 

Motion to Dismiss Standard 

 In evaluating a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must “accept all facts alleged in 

the complaint as true and draw all reasonable inferences in the 

light most favorable to the plaintiff.” Parish v. City of Elkhart, 

614 F.3d 677, 679 (7th Cir. 2010) (citation omitted). While a 

complaint is not required to contain detailed factual allegations, 

the plaintiff must allege facts that “state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “[A] plaintiff’s 
-6‐ 

obligation to provide the ‘grounds’ of his ‘entitle[ment] to 

relief’ requires more than labels and conclusions.” Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 

2d 929 (2007) (citations omitted). “Factual allegations must be 

enough to raise a right to relief above the speculative level . . 

. on the assumption that all the allegations in the complaint are 

true (even if doubtful in fact).” Id. (citations omitted). 

“[E]ven with the heightened pleading requirements of Iqbal and 

Twombly, the pleading requirements to survive a challenge to a 

motion to dismiss remain low.” Diedrich v. Ocwen Loan Servicing,

LLC, 839 F.3d 583, 589 (7th Cir. 2016). 

Count I – Breach of Contract Claim 

Count I alleges that Defendants breached the Agreements by 

“fail[ing] to pay [Plaintiffs] a commission on all Biomet products 

sold in their respective territories as required by the terms of 

the retirement-income program.” (DE #1, ¶96.) To recover for 

breach of contract under Indiana law, a plaintiff must prove that 

“(1) a contract existed, (2) the defendant breached the contract, 

and (3) the plaintiff suffered damage as a result of the 

defendant’s breach.” Duncan v. Greater Brownsburg Chamber of 

Commerce, Inc., 967 N.E.2d 55, 57 (Ind. Ct. App. 2012) (citation 

omitted). Count I alleges that: (1) Plaintiffs and Defendants 

were parties to the Agreements, which provided for payment of 

lifetime commissions on all Biomet products sold in the relevant 
-7‐ 

territories (id., ¶89-92); (2) Defendants violated the Agreements 

by failing to pay Plaintiffs commissions on all Biomet products 

sold in those territories (id., ¶96); and (3) as a result of those 

violations, Plaintiffs suffered damages in the amount of unpaid 

commissions (id., ¶¶101-105). Accepting the facts as alleged in 

the Complaint as true, and drawing all reasonable inferences in 

Plaintiffs’ favor, Count I sufficiently alleges facts stating a 

plausible breach of contract claim. 

Defendants do not dispute whether Count I has facial 

plausibility. Rather, they contend that Count I must be dismissed 

because Plaintiffs allegedly conceded that Biomet had honored its 

obligations under the Agreements in a letter dated July 20, 2015, 

from Plaintiffs’ counsel to Zimmer Biomet (“July 2015 Letter”). 

The July 2015 Letter was not attached as an exhibit to the 

Complaint. Nonetheless, Defendants maintain that the Court may 

consider the July 2015 Letter because the Complaint references and 

quotes from the letter. Defendants filed a copy of the July 2015 

Letter as an exhibit to their motion to dismiss. (DE #19-1.) “In 

general, a court may only consider the plaintiff’s complaint when 

ruling on a Rule 12(b)(6) motion.” Burke v. 401 N. Wabash Venture, 

LLC, 714 F.3d 501, 505 (7th Cir. 2013) (citation omitted). 

However, “documents attached to a motion to dismiss are considered 

part of the pleadings if they are referred to in the plaintiff’s 

complaint and are central to his claim.” Id. (citations omitted). 
-8‐ 

The court may consider such documents in ruling on a motion to 

dismiss without converting the motion into a motion for summary 

judgment. Id. 

While the Complaint refers to and quotes from the July 2015 

Letter (DE #1, ¶¶52-53), it does not appear to be central to 

Plaintiffs’ claims. The Complaint alleges that, prior to the 

merger, Biomet proposed buyout offers to Plaintiffs in return for 

terminating their Agreements. (Id., ¶¶39, 50.) Plaintiffs 

rejected these offers, and hired counsel to negotiate a compromise 

with Defendants. (Id., ¶52.) Plaintiffs’ counsel sent the July 

2015 Letter to Zimmer Biomet, noting Zimmer Biomet’s continuing 

obligation to pay Plaintiff the amounts due them under the 

Agreements, and proposed potential resolutions to the parties’ 

conflicting positions. (Id.) In response, Zimmer Biomet declined 

further buyout negotiations and maintained that the Agreements do 

not extend to non-Biomet products. (Id., ¶54.) The Complaint 

references the July 2015 Letter and other correspondence between 

the parties to “establish[] that a current, justiciable dispute 

exists between [Plaintiffs], Biomet, and Zimmer Biomet regarding 

their respective rights and obligations under the Agreements.” 

(Id., ¶57.) 

Even if the July 2015 Letter is central to Plaintiffs’ claims, 

Plaintiffs argue that the July 2015 Letter, which is marked “Offer 

of Compromise and Settlement pursuant to Rule 408 of the Rules of 
-9‐ 

Evidence,” is inadmissible because it was prepared as part of 

settlement discussions with Defendants. Rule 408 provides that 

evidence regarding “a statement made during compromise 

negotiations about the claim” “is not admissible – on behalf of 

any party – either to prove or disprove the validity or amount of 

a disputed claim.” Fed. R. Evid. 408; see United States v. Dish 

Network, L.L.C., No. 09-3073, 2015 WL 9164665, at *2 (C.D. Ill. 

Dec. 16, 2015) (“Rule 408 promotes settlement by encouraging frank 

discussions during settlements negotiations without fear that the 

statements would be used against the party later during the 

proceeding.”). Defendants contend that Rule 408 does not apply 

because the July 2015 Letter was merely a response to Biomet’s 

proposed buyout of future obligations under the Agreements. They 

maintain that no actionable dispute existed when the July 2015 

Letter was written and no offer of compromise was made. Defendants 

also insist that Plaintiffs “opened the door” for the Court’s 

consideration of the July 2015 Letter by pleading its existence 

and quoting it in the Complaint. They rely upon case law 

addressing motions for summary judgment to assert that “[w]hen a 

party opens the door to evidence that would be otherwise 

inadmissible, that party cannot complain on appeal about the 

admission of that evidence. And when a party puts evidence at 

issue, that party must accept the consequence[s] of opening the 

door to that evidence.” United States v. Dish Network, L.L.C., 75 
-10‐ 

F. Supp. 3d 942, 971 (C.D. Ill. 2014), vacated in part on other 

grounds on recons., 80 F. Supp. 3d 917 (C.D. Ill. 2015) (quoting 

Estate of Escobedo v. Martin, 702 F.3d 388, 400 (7th Cir. 2012) 

(citations omitted)) (rejecting argument that settlement material 

was inadmissible under Rule 408 where arguing party had cited the 

material first). 

“Rule 408 is an evidentiary rule, which is best addressed in 

context of admissibility of evidence at trial.” PTR, Inc. v. 

Forsythe Racing, Inc., No. 08 C 5517, 2009 WL 1606970, at *4 (N.D. 

Ill. June 9, 2009) (denying motion to strike complaint allegations 

based on Rule 408 as premature, and allowing defendants to file 

motion in limine if case is presented to jury); see Brandy v. Maxim 

Healthcare Servs., Inc., No. 2:12 CV 192, 2012 WL 5268365, at *2 

(N.D. Ind. Oct. 23, 2012) (denying motion to strike pleading based 

on Rule 408 because “it is too early to determine what evidence 

would be used and whether it would be barred by Rule 408”). The 

Court finds that whether Rule 408 applies to the July 2015 Letter 

is premature at this stage of the litigation. See Abercrombie & 

Fitch Co. v. Fed. Ins. Co., No. 2:06-CV-831, 2008 WL 656029, at *5 

(S.D. Ohio Mar. 11, 2008) (denying motion to dismiss, explaining 

“whether Rule 408 applies to [plaintiff’s] claim cannot be 

determined at the pleading stage of this case”). The possibility 

that Rule 408 precludes Defendants from offering evidence to 

disprove Count I is inappropriate for the Court to consider in the 
-11‐ 

context of this Rule 12(b)(6) motion. “Whether this evidence is 

admissible as relevant, probative and permissible, is a decision 

that can only be made in a legal and factual context, which cannot 

be determined from the pleadings standing alone.” Id.2 

Defendants’ motion to dismiss Count I is DENIED. 

Counts II and III 

Defendants move to dismiss Counts II and III. Count II 

alleges that Defendants “breached the Agreements and the implied 

covenant of good faith and fair dealing by spinning off, rebranding, substituting and otherwise discontinuing Biomet-branded 

products, in favor of substantially similar, if not functionally 

identical, product lines bearing a Zimmer and/or Zimmer Biomet 

brand, and by failing to pay [Plaintiffs] a commission on such 

Zimmer or Zimmer Biomet branded products.” (DE #1, ¶113.) Count 

III alleges that Zimmer Biomet “breached the Agreements and the 

implied covenant of good faith and fair dealing by failing to pay 

[Plaintiffs] commissions on all products sold by Biomet or Zimmer 

Biomet in [Plaintiffs’] former territories, regardless of whether 

such products are branded as Biomet, Zimmer, or Zimmer Biomet 

                                                            

2 Even if the Court were to consider the July 2015 Letter, the 

Complaint includes allegations which, when considered in the light 

most favorable to Plaintiffs, reasonably infer that the July 2015 

Letter was written before Plaintiffs discovered that Biomet had 

been underpaying Plaintiffs in violation of the Agreements. (See

DE #1, ¶¶39-41 (alleging Plaintiffs only recently discovered 

Biomet’s failure to pay commissions on all of its products as a 

result of discussions with Biomet’s counsel in 2015).) 
-12‐ 

products.” (Id., ¶123.) Defendants argue that Counts II and III 

should be dismissed because they do not plead valid claims for 

breach of duty of good faith under Indiana law. Plaintiffs respond 

that Counts II and III allege a duty of good faith as a subset of 

their breach of contract claims, not as separate causes of action. 

Defendants maintain that Counts II and III do not state breach 

of contract claims because they do not allege that Defendants 

failed to perform any obligation under the Agreements, but rather, 

rely on an implied covenant of good faith and fair dealing as the 

basis of the alleged breach. See Decatur Ventures, LLC v. 

Stapleton Ventures, Inc., 373 F. Supp. 2d 829, 847 (S.D. Ind. 2005) 

(dismissing breach of contract claim where plaintiffs did not 

allege breach of contractual term, but rather, “something akin to 

breach of the duty to act in good faith and in accordance with 

reasonable standards of fair dealing”); Perfect Flowers, Inc. v. 

Teleflora LLC, No. 1:10-CV-1031, 2012 WL 2994636, at *3 (S.D. Ind. 

July 20, 2012) (dismissing breach of contract claim, rejecting 

plaintiff’s contention that “although no specific provision of the 

contract was breached, Defendant breached its obligation of good 

faith and fair dealing by exceeding the scope of the contract”). 

Count II alleges that Defendants spun off, re-branded, substituted 

and otherwise discontinued Biomet products. But the Complaint 

does not identify any contractual obligation that Defendants 
-13‐ 

allegedly breached by doing so. Thus, Count II does not state a 

breach of contract claim. 

Count III alleges that Zimmer Biomet failed to pay Plaintiffs 

commissions on all products sold by Biomet or Zimmer Biomet, 

regardless of whether they were branded as Biomet, Zimmer, or 

Zimmer Biomet. Defendants argue that this claim does not plead 

that the parties intended the retirement commissions on Biomet 

products to include Zimmer and Zimmer Biomet products. See Fellows 

v. Bd. of Trustees of Welborn Clinic, 63 F. Supp. 2d 942, 944 (S.D. 

Ind. 1998) (“The primary and overriding purpose when interpreting 

a written contract is to give effect to the parties’ mutual intent 

at the time the contract is written.”). In response, Plaintiffs 

cite allegations supporting their entitlement to retirement 

commissions for products sold by Zimmer Biomet: (1) the Termination 

Agreements expressly provide that the retirement income program 

“would be binding on Biomet, and its respective successors and 

assigns” (DE #1, ¶35); (2) Zimmer and Biomet merged, resulting in 

a single combined company, and under Indiana law, Zimmer Biomet 

succeeds to all liabilities of Biomet; and (3) Zimmer Biomet’s 

liability is based on the doctrines of de facto merger, mere 

continuation, alter ego, and piercing the corporate veil. (Id., 

¶¶22, 58-78.) These Complaint allegations, coupled with Count 

III’s allegation that the Agreements “provide for payment of a 

lifetime commission on all Biomet products sold in the relevant 
-14‐ 

territories” (id., ¶¶120-21), state a breach of contract claim 

against Zimmer Biomet for its alleged failure to pay Plaintiffs 

commissions on all Biomet products sold in the relevant territories 

after the merger. See Ind. Code § 23-1-40-6(a)(3) (“When a merger 

takes effect . . . the surviving corporation has all liabilities 

of each corporation party to the merger”). 

Plaintiffs insist that whether the parties intended for the 

Agreements to apply to Zimmer and Zimmer Biomet products is a factintensive issue that is inappropriate for resolution under a Rule 

12(b)(6) motion. They rely on Zimmer US Inc. v. Mire, 188 F. Supp. 

3d 843 (N.D. Ind. 2016), in which the court denied a motion to 

dismiss a breach of contract claim where the word “assigned” was 

not defined in the agreement, and the resolution of “whether a 

specific territory was ‘assigned’ to Mire . . . would involve an 

assessment of evidence . . . to determine the parties’ intent when 

they signed the agreement.” Id. at 851. Here, the Complaint does 

not allege any ambiguous language in the Agreements. Count III 

alleges that the Agreements provided for commission payments “on 

all Biomet products sold in the relevant territories.” (DE# 1, 

¶120 (emphasis added).) The Complaint alleges that the 

Distributorship Agreements “provide a retirement-income program 

that would pay a lifetime commission on all Biomet products sold 

in the relevant territory,” and that “the program would be paid on 

a percentage of ‘net sales’” that “appl[ies] to Biomet’s entire 
-15‐ 

product line without limitations of any type.” (Id., ¶¶34, 36 

(emphasis added); see id., ¶37 (“The Agreements entitle 

[Plaintiffs] to be paid a commission based upon the sales of all 

Biomet products within their former territories.”) (emphasis 

added).) Because the Complaint does not allege a contractual 

obligation for Zimmer Biomet to pay Plaintiffs a commission on any 

products other than Biomet products, Count III only states a breach 

of contract claim relating to Biomet products. 

Plaintiffs contend that even if they had pleaded a breach of 

an implied covenant of good faith and fair dealing as a separate 

cause of action, dismissal of Counts II and III is not warranted. 

“Indiana law does not impose a generalized duty of good faith and 

fair dealing on every contract; the recognition of an implied 

covenant is generally limited to employment contracts and 

insurance contracts.” Old Nat. Bank v. Kelly, 31 N.E.3d 522, 531 

(Ind. Ct. App. 2015) (citing Allison v. Union Hosp., Inc., 883 

N.E.2d 113, 123 (Ind. Ct. App. 2008)). The Court of Appeals of 

Indiana has noted that there is “no absolute restriction” of a 

duty of good faith and fair dealing to employment and insurance 

contracts, and has discerned “no crucial difference between 

insurance companies and banks, as each—from a superior vantage 

point—offer customers contracts of adhesion.” Kelly, 31 N.E.3d at 

531. Plaintiffs rely on Kelly to argue that Defendants had a 

“superior vantage point” because they have exclusive control of 
-16‐ 

their product sales and the calculation and reporting of the 

retirement commissions for those sales. But the Complaint does 

not allege that Defendants had a superior vantage point when the 

parties entered into the Agreements, or that the parties entered 

into any contracts of adhesion.3 Rather, the Complaint alleges 

that Plaintiffs were “highly successful sales representative[s],” 

and that “Biomet struggled to sell medical devices” and “needed an 

incentive that would convince these highly-successful sales 

representatives to take a risk on a fledgling firm like Biomet.” 

(DE# 1, ¶¶ 14, 23, 25.) As such, this argument is unpersuasive. 

Plaintiffs also argue that if a contract is ambiguous, the 

courts will impose a duty of good faith and fair dealing. See

Allison, 883 N.E.2d at 123. “A contract is ambiguous if a 

reasonable person would find the contract subject to more than one 

interpretation.” Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 

813 (Ind. 2012) (citation omitted). Plaintiffs assert that the 

Agreements are ambiguous because the parties interpret them 

differently. But “the fact that the parties disagree over the 

meaning of the contract does not, in and of itself, establish an 

ambiguity.” Claire's Boutiques, Inc. v. Brownsburg Station 

                                                            

3 Adhesion contracts are “standardized contracts, which, imposed 

and drafted by a party of superior bargaining strength, relegate 

subscribing parties only the opportunity to adhere to the contract 

or reject it.” John M. Abbott, LLC v. Lake City Bank, 14 N.E.3d 

53, 58 n.2 (Ind. Ct. App. 2014). 
-17‐ 

Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013) (citation 

omitted). Plaintiffs point to no allegations in the Complaint 

indicating that the Agreements are ambiguous, and the Court has 

found none. Courts applying Indiana law have refused to find an 

independent cause of action for breach of a duty of good faith and 

fair dealing in similar circumstances: 

Based on Indiana’s reluctance to extend this duty to 

unambiguous non-insurance and non-employment contracts, 

the general limitation to employment and insurance 

contracts, and the lack of allegations in the pleadings 

that the contracts were ambiguous, the Court determines 

that claims for breach of covenant and implied covenant 

of good faith and fair dealing are not viable under the 

unambiguous [] agreements that were freely entered into 

by the parties. 

7E Fit Spa Licensing Grp. LLC v. 7EFS of Highlands Ranch, LLC, No. 

115CV01109, 2016 WL 4761562, at *10 (S.D. Ind. Sept. 13, 2016) 

(dismissing such claims); see Hamilton v. Wells Fargo Bank, N.A., 

No. 09-04152 CW, 2010 WL 1460253, at *3 (N.D. Cal. Apr. 12, 2010) 

(dismissing breach of covenant of good faith and fair dealing claim 

where plaintiff had not shown contract was ambiguous or pertained 

to employment or insurance matters) (applying Indiana law). Even 

if the Agreements are found to be ambiguous, the duty of good faith 

and fair dealing would only help the Court interpret the contracts, 

rather than support an independent cause of action. See Ball v. 

Versar, Inc., No. IP01-0531, 2002 WL 33964449, at *7 (S.D. Ind. 

Sept. 6, 2002) (dismissing breach of duty of good faith and fair 

dealing claim, noting that “even if a contractual ambiguity is 
-18‐ 

identified later in the case, so that the court might turn to an 

implied duty of good faith and fair dealing to help interpret the 

contract, that still would not support an independent tort claim”); 

ArcAngelo, Inc. v. Directbuy, Inc., No. 3:13CV104, 2013 WL 6095678, 

at *4 & n.1 (N.D. Ind. Nov. 20, 2013) (similar) (citing First 

Federal Savings Bank of Indiana v. Key Markets, Inc., 559 N.E.2d 

600 (Ind. 1990)). For these reasons, neither Count II nor Count 

III state a claim for breach of an implied covenant of good faith 

and fair dealing. 

For the reasons provided above, Count II does not state a 

claim for breach of contract, and therefore is DISMISSED. Count 

III does not state a breach of contract claim for failing to pay 

commissions on sales of Zimmer products or Zimmer Biomet products. 

While Count III does state a breach of contract claim against 

Zimmer Biomet for failing to pay commissions on sales of all Biomet 

products, Count I alleges the same claim. (See DE #1, ¶¶95-96 

(alleging breach of contract claim against Zimmer Biomet and Biomet 

for failing to pay Plaintiffs commissions on all Biomet products 

sold in their respective territories).) Because the only claim 

remaining in Count III is duplicative of Count I, the Court in its 

discretion DISMISSES Count III in its entirety.4

                                                            

4 In a footnote, Defendants assert that Counts II and III should be 

dismissed with respect to Plaintiff Frank Shera (“Shera”) because 

his Termination Agreement defines “Products” as “orthopedic 

products offered for sale by Biomet under the Biomet trademark,” 
-19‐ 

Count IV 

Count IV asserts a deception claim against Defendants under 

the Indiana Crime Victims Relief Act (“CVRA”). Indiana Code 

section 35-43-5-3 provides that a person who “knowingly or 

intentionally makes a false or misleading written statement with 

intent to obtain property” commits criminal deception. Ind. Code 

§ 35-43-5-3(a)(2). Under the CVRA, one who suffers a pecuniary 

loss due to a violation of Section 35-43, including criminal 

deception, may recover treble damages, costs and attorney’s fees. 

See Ind. Code § 34-24-3-1(1)-(3). To recover under the CVRA, a 

plaintiff must prove the elements of the criminal act by a 

preponderance of the evidence. See Larson v. Karagan, 979 N.E.2d 

655, 661 (Ind. Ct. App. 2012); French-Tex Cleaners, Inc. v. Cafaro 

Co., 893 N.E.2d 1156, 1166 (Ind. Ct. App. 2008). 

Defendants argue that Count IV must be dismissed because the 

alleged deception is really a breach of contract claim. “Recovery 

under the [CVRA] is not based on a breach of contract, but must be 

                                                            

and states that “Products sold by Biomet’s subsidiary corporations 

are not included within the meaning of ‘Products’ used herein.” 

(DE #19 at 13 n.5.) Plaintiffs respond that these provisions were 

taken out of context from Shera’s Termination Agreement, and do 

not apply to the commissions at issue, but rather, to a particular 

customer account with which Shera was to be involved after his 

retirement. Defendants do not address Plaintiffs’ response in 

their reply brief. Their silence leads the Court to conclude that 

Defendants concede this argument. See Bonte v. U.S. Bank, N.A.,

624 F.3d 461, 466 (7th Cir. 2010) (“silence leaves us to conclude” 

a concession; “[f]ailure to respond to an argument . . . results 

in waiver”). 
-20‐ 

predicated on an independent tort.” State Grp. Indus. (USA) Ltd. 

v. Murphy & Assocs. Indus. Servs., Inc., 878 N.E.2d 475, 480 (Ind. 

Ct. App. 2007); see JPMCC 2006-CIBC14 Eads Parkway, LLC v. DBL 

Axel, LLC, 977 N.E.2d 354, 364 (Ind. Ct. App. 2012) (“Where the 

source of a party’s duty to another arises from a contract, tort 

law should not interfere.”). Defendants maintain that because 

Count IV rests on allegations that they broke a promise to pay 

Plaintiffs commissions on all Biomet products sold in Plaintiffs’ 

former territories, it merely repackages Plaintiffs’ breach of 

contract claims as a deception claim. See Dunlap v. Switchboard 

Apparatus, Inc., No. 1:12-CV-0020-TWP-DKL, 2012 WL 1712554, at *10 

(S.D. Ind. May 15, 2012) (dismissing CVRA conversion claim that 

was “little more than a repackaged version of the breach of 

contract claim, presumably brought to up the ante by raising the 

specter of treble damages”) (internal quotations and citation 

omitted). Count IV alleges that: 

Biomet has systemically underpaid [Plaintiffs] for many 

years . . . and has concealed these underpayments through 

false or misleading commission statements. Since the 

merger, Defendants have continued to underpay 

[Plaintiffs] and have continued to conceal these 

underpayments through false or misleading commission 

statements. . . . These statements were designed to 

actively conceal these underpayments and mislead 

[Plaintiffs] by paying them on only a subset of Biomet 

products, despite a plain contractual obligation to pay 

[Plaintiffs] on all Biomet products. 
-21‐ 

(DE #1, ¶128 (emphasis added).) Thus, the deception alleged in 

Count IV is related to Defendants’ alleged failure to pay 

Plaintiffs commissions in breach of the Agreements. 

Plaintiffs argue that Defendants engaged in conduct 

prohibited by the CVRA that is separate from their breach of the 

Agreements. According to Plaintiffs, their breach of contract 

claim concerns Defendants’ alleged failure to pay commissions owed 

under the Agreements, while Count IV concerns Defendants’ alleged 

false and misleading commission statements. They point to 

allegations that Defendants provided commission statements 

“contain[ing] no substantive information beyond the total amount 

of commission to be paid” (DE #1, ¶42), that Plaintiffs “did not 

know, and could not tell from the statements . . . that this 

commission payment failed to pay [Plaintiffs] for all Biomet 

product sales from their former territories” (id., ¶43), and that 

Defendants designed the statements “to actively conceal these 

underpayments and mislead [Plaintiffs] by paying them on only a 

subset of Biomet products,” and gained illicit proceeds by doing 

so (id., ¶128). Plaintiffs maintain that Defendants’ alleged 

deception was not simply underpaying Plaintiffs, but rather, 

issuing false and misleading commission statements in order to 

underpay Plaintiffs. 

Plaintiffs rely upon Indiana case law that has allowed 

recovery under the CVRA notwithstanding that the CVRA claim was 
-22‐ 

related to an alleged breach of contract. See, e.g., Longhi v. 

Mazzoni, 914 N.E.2d 834, 846 (Ind. Ct. App. 2009)(affirming treble 

damages award for deception where defendant failed to return 

earnest deposit in breach of a contract to build a house); Larson, 

979 N.E.2d at 658, 661 (affirming treble damages award for 

conversion where defendant breached oral contract for 

commissions); State Grp. Indus., 878 N.E.2d at 478 (remanding to 

determine damages under CVRA where trial court found breach of 

contract and knowing submission of false or misleading invoices). 

While none of these opinions address the issue of whether the CVRA 

claim was merely a repackaged version of a breach of contract 

claim, they demonstrate that Indiana courts are not averse to 

allowing recovery for CRVA claims that relate to a breach of 

contract. Defendants argue that unlike Plaintiffs’ cited case 

law, Count IV is based on the parties’ disagreement over the 

contract interpretation, i.e., the scope of commissions to which 

Plaintiffs are entitled under the Agreements. But Defendants do 

not cite, and the Court was unable to find, case law granting a 

motion to dismiss where the CVRA claim was based on the parties’ 

disagreement over the interpretation of a contract. 

Defendants maintain that Plaintiffs seek “to elevate the 

disagreement over contract interpretation into actionable conduct 

solely because Defendants sent commissions statements that reflect 

the amount Defendants believe is due to Plaintiffs under the 
-23‐ 

contracts.” (DE #29 at 9.) They insist that “the Indiana 

legislature did not intend to criminalize bona fide contract 

disputes.” French-Tex Cleaners, 893 N.E.2d at 1168. In support, 

they rely upon cases that applied the summary judgment standard of 

review and considered evidence in dismissing tort claims. See id.

at 1167-68 (affirming summary judgment on conversion claim where 

there was “not a material issue of fact” regarding whether alleged 

tortfeasor had requisite mens rea to support conversion claim, 

rather, he “acted in accordance with a reasonable interpretation 

of the ambiguous contract”); T-3 Martinsville, LLC v. US Holding, 

LLC, 911 N.E.2d 100, 121 (Ind. Ct. App. 2009) (affirming summary 

judgment on deception claim where there was “absolutely no 

evidence” that alleged tortfeasor “made any false or misleading 

written statement . . . with the intent to obtain property”); DBL 

Axel, 977 N.E.2d at 365 (affirming summary judgment on conversion 

claim, among other tort claims, where evidence “d[id] not 

demonstrate the degree of culpability necessary to establish any 

of the Tort Claims”); Tobin v. Ruman, 819 N.E.2d 78, 86 (Ind. Ct. 

App. 2004) (affirming summary judgment on fraud claim where “our 

review of the designated evidence reveals that Tobin’s fraud claim 

is, in fact, merely a repackaged version of his breach of contract 

claim”). As Plaintiffs note, the summary judgment standard of 

review differs from the Rule 12(b)(6) standard the Court is to 

apply here. The purpose of a Rule 12(b)(6) motion to dismiss is 
-24‐ 

“to test the sufficiency of the complaint, not to decide the 

merits.” Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 

1990). This standard requires the Court to accept as true all 

well pled facts alleged by Plaintiffs and draw all permissible 

inferences in their favor. See Parish, 614 F.3d at 679. A claim’s 

“[f]actual allegations must be enough to raise a right to relief 

above the speculative level.” Twombly, 550 U.S. at 555. 

In Sheridan Health Care Center, Inc. v. Centennial Healthcare 

Corp., No. IP01-0186CMS, 2001 WL 1029111 (S.D. Ind. June 19, 2001), 

the court denied a motion to dismiss a CVRA conversion claim and 

rejected the argument that the claim was simply one for breach of 

contract. Id. at *6. In doing so, the court relied on Indiana 

case law that did not find the existence of a contract between the 

parties to be dispositive, but instead, looked to evidence of the 

individual elements of a conversion claim to reach a decision. 

Id. (citing Gilliana v. Paniaguas, 708 N.E.2d 895 (Ind. Ct. App. 

1999), and NationsCredit Commercial v. Grauel Enter., 703 N.E.2d 

1072 (Ind. Ct. App. 1998)). “[T]he [Indiana] courts stressed that 

unlike the ‘innocent breach of contract’ action, in a civil 

conversion action, the party alleging the civil conversion must 

prove the criminal intent element.” Id. (citations omitted); see 

French-Tex Cleaners, 893 N.E.2d at 1167 (“It is this mens rea

requirement that differentiates criminal conversion from a more 

innocent breach of contract or failure to pay a debt, which 
-25‐ 

situations the criminal conversion statute was not intended to 

cover.”). The Sheridan court denied the motion to dismiss the 

conversion claim because the plaintiff had adequately alleged its 

elements, including that the defendant acted “knowingly or 

intentionally.” 2001 WL 1029111 at *6.5

To state a CVRA claim based on criminal deception, Plaintiffs 

must allege that Defendants knowingly or intentionally made a false 

or misleading written statement with intent to obtain property, 

and that Plaintiffs suffered a loss as a result. Ind. Code §§ 34–

24–3–1, 35-43-5-3(a)(a).6 While Defendants contend that the 

commission statements reflect the amount they believe is due to 

Plaintiffs under the Agreements, this is not alleged in the 

Complaint. Rather, Count IV alleges that “Defendants knowingly or 

intentionally made false or misleading written statements (each 

commission statements provided to [Plaintiffs]) with the intent to 

obtain property” and “reaped millions of dollars in proceeds, 

                                                            

5 Plaintiffs also rely upon Koger v. T & C, Inc., 9 N.E.3d 259 (Ind. 

Ct. App. Mar. 18, 2014) (Table), in support of their argument. As 

noted by Defendants, Koger was an unpublished memorandum decision. 

An unpublished memorandum decision of the Court of Appeals of 

Indiana “shall not be cited to any court except by the parties to 

the case to establish res judicata, collateral estoppel, or law of 

the case.” Ind. R. App. P. 65(D). 

6

 “A person engages in conduct ‘knowingly’ if, when he engages in 

the conduct, he is aware of a high probability that he is doing 

so.” Ind. Code § 35-41-2-2(b). “A person engages in conduct 

‘intentionally’ if, when he engages in the conduct, it is his 

conscious objective to do so.” Ind. Code § 35-41-2-2(a). 
-26‐ 

otherwise intended for the retirement of [Plaintiffs], by using 

these commission statements in the manner they did.” (DE #1, 

¶¶127-28.) Drawing all permissible inferences in Plaintiffs’ 

favor, Count IV does not allege an innocent breach of contract, 

but rather, alleges that Defendants knowingly or intentionally 

made false or misleading written commission statements to 

Plaintiffs in order to underpay them. Cf. Dunlap, 2012 WL 1712554, 

at *9-*10 (dismissing conversion claim that merely alleged that 

“Defendants failed to pay the amounts owed, and failed to provide 

Plaintiffs the promised stock ownership” because it was “little 

more than a repackaged version” of breach of contact claim). 

Defendants also argue that Count IV should be dismissed 

because the only pecuniary losses alleged in Count IV are the same 

losses alleged in Plaintiffs’ breach of contract claims. They 

cite Epperly v. Johnson, 734 N.E.2d 1066 (Ind. Ct. App. 2000), in 

which the court reversed a punitive damages award based on a fraud 

claim where “[t]he misrepresentation did not result in injury 

distinct from that resulting from the breach [of contract], and it 

thus is not independently actionable as fraud.” Id. at 1073. 

Defendants also rely upon Fritzinger v. Angie's List, Inc., No. 

1:12-CV-01118-JMS, 2013 WL 772864, *3 (S.D. Ind. Feb. 28, 2013), 

in which the court dismissed CVRA claims that failed to allege an 

independent tort and a separate distinct injury. 
-27‐ 

Plaintiffs do not deny that the Complaint alleges the same 

injury for their breach of contract and deception claims. Rather, 

they maintain that the independent injury requirement does not 

extend to CVRA claims. Epperly did not address a CVRA claim, but 

rather, addressed a fraud claim. And while Fritzinger dismissed 

CVRA claims that failed to allege a distinct injury, the court had 

also found that the CVRA claims failed to allege an independent 

tort. Here, in contrast, Count IV alleges an independent tort. 

Plaintiffs also cite Indiana cases in which the damages claim and 

amount were the same for the breach of contract and CVRA claims. 

See, e.g., Larson, 979 N.E.2d at 662 (same damages for CVRA 

conversion claim and breach of oral contract for commissions);

Longhi, 914 N.E.2d at 846 (same damages for CVRA deception claim 

and breach of contract to build house). Given the Indiana case 

law awarding damages under the CVRA where plaintiffs sought the 

same damages for breach of contract, the Court declines to dismiss 

Count IV based solely on the lack of an alleged independent injury. 

Defendants argue that Count IV does not satisfy the heightened 

pleading requirements of Federal Rules of Civil Procedure Rule 

9(b). Rule 9(b) requires that a party “state with particularity 

the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). “[A] 

plaintiff ordinarily must describe the ‘who, what, when, where, 

and how’ of the fraud.” Pirelli Armstrong Tire Corp. Retiree Med. 

Benefits Trust v. Walgreen Co., 631 F.3d 436, 441–42 (7th Cir. 
-28‐ 

2011) (citation omitted). Courts apply the heightened pleading 

standard of Rule 9(b) to claims of criminal deception. See e.g., 

Heartland Recreational Veh., LLC v. Forest River, Inc., No. 3:08-

CV-490ASCAN, 2009 WL 1085837, at *4 (N.D. Ind. Apr. 22, 2009).

Defendants contend that Count IV fails to satisfy Rule 9(b) 

because it offers no degree of particularity, and merely refers to 

earlier paragraphs in the Complaint. The Court disagrees. Count 

IV explicitly incorporates the prior allegations of the Complaint. 

(DE #1, ¶126.) The Complaint provides representative examples of 

Defendants’ allegedly misleading commission statements, and 

alleges that Plaintiffs did not know, and could not tell from the 

statements, that Defendants failed to pay them commissions for all 

Biomet product sales from their former territories. (Id., ¶¶42-

46.) It further alleges that Defendants knowingly or intentionally 

made these false or misleading commission statements, and procured 

proceeds intended for Plaintiffs by doing so. (Id., ¶¶127-28.) 

The Complaint alleges that Defendants (the who) concealed their 

underpayment of Plaintiffs’ retirement commissions (the what) by 

sending fraudulent or misleading commission statements (the how) 

to Plaintiffs (the where, reasonably inferred to be Plaintiffs’ 

states of citizenship) on a monthly or semi-monthly basis from the 

inception of their retirement-income payments (the when). (Id. ¶¶ 

1-6, 11, 17, 42-47, 127-28.) As such, Count IV states a claim for 

relief under the heightened Rule 9(b) motion to dismiss standard. 
-29‐ 

Count V 

Defendants argue that Count V should be dismissed because it 

asserts a theory of recovery rather than a standalone claim. Count 

V alleges that the transaction resulting in the formation of Zimmer 

Biomet was a merger, or alternatively, a de facto merger, and that 

Zimmer Biomet is responsible for the liabilities of Biomet as a 

result of the de factor merger. (DE #1, ¶134.) It also alleges 

that Zimmer Biomet is a “mere continuation” of Biomet (id., ¶135), 

that Biomet and Zimmer Biomet are operated as a single entity, 

whereby Biomet serves as the alter ego of Zimmer Biomet (id., 

¶136), and that “[t]here is such unity of interest and ownership 

between Zimmer Biomet and Biomet that the interests of Zimmer 

Biomet and Biomet are inseparable, and the adherence to a fiction 

of separate entities would sanction fraud or promote injustice” 

toward Plaintiffs such that “the Court should pierce the corporate 

veil and hold that Zimmer Biomet is legally obligated to honor the 

terms of the Agreements” (id., ¶¶138-39). Defendants argue that 

Count V should be dismissed because “[p]iercing the corporate veil 

is not an independent cause of action, nor a separate claim.” 

United States v. ARG Corp., No. 3:10-CV-00311-PPS, 2014 WL 88928, 

at *2 (N.D. Ind. Jan. 7, 2014) (citing Reed v. Reid, 980 N.E.2d 

277, 301 (Ind. 2012)). 

Plaintiffs respond that the cases cited by Defendants ruled 

in favor of the parties asserting claims for piercing the corporate 
-30‐ 

veil. In Reed, the plaintiff sought to impose liability on other 

corporate entities allegedly owned or controlled by a defendant, 

and advanced “several theories” in support of these claims. 980 

N.E.2d at 297; see id. at 299-301 (addressing de facto merger, 

mere continuation, and piercing the corporate veil). The Supreme 

Court of Indiana explained that “[t]hese theories create no 

independent causes of action, but ‘merely furnish[] a means for a 

complainant to reach a second corporation or individual upon a 

cause of action that otherwise would have existed only against the 

first corporation.” Reed, 980 N.E.2d at 297-98 (quoting 1 William 

Meade Fletcher, Fletcher Cyc. of the Law of Corp. § 41.10 at 136 

(perm. ed. rev. vol. 2006)). In a footnote, the court noted that 

the plaintiff had made “a separate claim to pierce the corporate 

veil.” Id. at 298 n.16. The court affirmed the denial of summary 

judgment of that claim, explaining that “[p]iercing the corporate 

veil involves a highly fact-sensitive inquiry that is not typically 

appropriate for summary disposition.” Id. at 303. 

In ARG Corporation, the plaintiff sought to amend the 

complaint to seek recovery under a piercing the corporate veil 

theory of liability. 2014 WL 88928, at *2. The amended complaint 

asserted a single claim for the recovery of certain costs, but 

added allegations that a defendant had abused the corporate form, 

and so should be held liable for the costs under the corporate 

veil-piercing doctrine. Id. The defendants moved to dismiss, 
-31‐ 

arguing that the amendment was barred by the statute of limitations 

and failed to state a claim for piercing the corporate veil. Id. 

The court rejected the defendant’s statute of limitation argument 

because the original complaint stated the same claim against the 

defendant for recovery of costs; the amended complaint “simply 

added a new theory of recovery.” Id. The court explained that 

“[p]iercing the corporate veil is not an independent cause of 

action, nor a separate claim.” Id. (citing Reed, 980 N.E.2d at 

301). “It is a remedy, a ‘means of imposing liability on an 

underlying cause of action such as a tort or breach of contract.’” 

Id. (quoting 1 Fletcher Cyc. Corp. § 41.10 at 136). The court 

then considered the plaintiff’s allegations, and found that they 

“sufficiently alleged a claim for piercing the corporate veil.” 

Id. at *3. 

The Court agrees with Defendants that piercing the corporate 

veil is not an independent cause of action in Indiana. Reed’s

footnote mentioning the existence of a separate veil-piercing 

claim is not sufficient to counter the Supreme Court of Indiana’s 

admonition that theories imposing liability on other corporate 

entities allegedly owned or controlled by a defendant “create no 

independent causes of action.” 980 N.E.2d at 297. The Court 

therefore GRANTS Defendants’ motion to dismiss Count V. However, 

the Court notes that these theories are alleged elsewhere in the 

Complaint, albeit in a more cursory manner. For example, Count I 
-32‐ 

alleges that Zimmer Biomet is responsible for the underpayment of 

retirement commissions to Plaintiffs “under the doctrines of ‘de 

facto merger,’ ‘mere continuation,’ ‘alter ego,’ and/or ‘piercing 

the corporate veil.’” (DE #1, ¶90; see id., ¶¶58-78 (alleging 

facts to support these theories of recovery).) As such, these 

theories remain pending in this litigation. 

Count VI 

Finally, Count VI seeks a declaratory judgment that: (1) 

Plaintiffs are entitled to retirement commission income on all 

Biomet products sold in their respective territories; (2) 

Plaintiffs are entitled to retirement commission income on all 

Biomet, Zimmer, and/or Zimmer Biomet products sold in their 

respective territories since the merger; and (3) Zimmer Biomet is 

liable for Biomet’s obligations pursuant to the merger and under 

the doctrines of de facto merger, mere continuation, alter ego, 

and piecing the corporate veil. (DE #1, ¶143.) Defendants argue 

that Count VI is based solely on the Plaintiffs’ other theories of 

liability, and therefore is duplicative. “When declaratory relief 

and another remedy are substantially similar, the court may 

exercise its discretion to dismiss the declaratory judgment 

claim.” The Pantry, Inc. v. Stop-N-Go Foods, Inc., 777 F. Supp. 

713, 717 (S.D. Ind. 1991) (citation omitted) (dismissing 

declaratory judgment claim where the claim “is inappropriately 

raised because the plaintiff may be fully compensated if it 
-33‐ 

prevails on the breach of contract claim”); see Lansing v. Carroll, 

868 F. Supp. 2d 753, 763–64 (N.D. Ill. 2012) (“Because the 

declaratory judgment claim (Count I) fails to add anything not 

already raised in the breach of contract claim (Count II), in an 

exercise of its discretion the court dismisses Count I.”). 

Plaintiffs respond that they properly pled facts to support the 

three claims for declaratory judgment in Count VI, and that the 

Court cannot determine the parties’ rights and obligations at 

dismissal stage. They do not assert that their declaratory 

judgment claim differs in any way from other claims raised in the 

Complaint. 

A review of the Complaint demonstrates that Count VI 

essentially seeks the same relief sought in Counts I (breach of 

contract), III (breach of contract), and V (piercing the corporate 

veil). As explained above, the only viable claim for relief stated 

in Count III is duplicative of Count I. While Count V does not 

allege an independent cause of action, the theories asserted in 

Count V are also alleged in Count I, and thus, remain pending. As 

such, the declaratory judgment claim does not state a viable claim 

for relief that is not already raised in Count I. Because Count 

VI fails to add any viable claim for relief not already raised in 

Count I, the Court in an exercise of its discretion DISMISSES Count 

VI. 
-34‐ 

CONCLUSION 

 For the reasons set forth above, Defendants’ Motion to Dismiss 

(DE# 18) is GRANTED IN PART and DENIED IN PART. Counts II, III, 

V, and VI are DISMISSED. Counts I and IV remain pending. 

 

DATED: February 16, 2017 /s/ RUDY LOZANO, Judge 

 United States District Court