LESLIE E. KOBAYASHI, District Judge.
On January 23, 2014, Defendants Joshua L. Gottlieb, Jonathan Dubowsky, Donald Borneman, Charles Hall, Scott Harris, the Value Exchange Advisors, doing business as TVXA ("TVXA"), and GEMCo-Pacific Energy LLC, also known as GPE ("GPE," all collectively "Defendants") filed their Motion to Dismiss Second Amended Complaint ("Motion"). [Dkt. no. 59.] Pro se Plaintiff Charles Barker III ("Plaintiff") filed two different documents titled "Plaintiff's Opposition to Defendants Motion for Summary Judgment" on February 6, 2014 and February 10, 2014. [Dkt. nos. 62, 63.] Defendants filed their reply memorandum ("Reply") on February 14, 2014. [Dkt. no. 66.] Plaintiff thereafter filed a document titled "Opposition to Defendants Motion to Dismiss" ("Memorandum in Opposition") on February 21, 2013.
The relevant factual and procedural background of this case is set forth in this Court's October 16, 2013 Order Granting in Part and Denying in Part Defendants' Motion for Judgment on the Pleadings ("10/16/13 Order"). [Dkt. no. 44.
Plaintiff filed his original Complaint on May 15, 2013. The Complaint alleged the following claims: fraud ("Count I"); "breach of fiduciary responsibility" ("Count II"); professional misconduct ("Count III"); violations of United States securities laws ("Count IV"); misrepresentation ("Count V"); malfeasance ("Count VI"); misappropriation of corporate funds ("Count VII"); breach of contract; ("Count VIII"); anticipatory breach of contract ("Count IX"); theft of real property purchase contract ("Count X"); theft of intellectual property ("Count XI"); negligence ("Count XII"); tortious interference ("Count XIII"); and violation of interstate commerce laws ("Count XIV").
The 10/16/13 Order noted that the remainder of the claims in the Complaint appeared to be state law claims. Id. This Court noted that those claims allegedly arose out of three agreements, one between TVXA and Cogentech-Pacific, LLC ("CPL"), one between GPE and Haleakala Holdings LLC ("HCL"), and one between Hamakua Energy Partners ("HEP"), HCL, and CPL (collectively "the Agreements").
Id. at 1176 (footnote omitted).
The 10/16/13 Order cautioned Plaintiff that, if his amended complaint failed to address the deficiencies this Court identified in the order, this Court could dismiss his claims with prejudice.
Plaintiff timely filed his Second Amended Complaint on January 16, 2014.
Defendants now ask this Court to dismiss Plaintiff's claims in the Second Amended Complaint.
As a preliminary matter, this Court notes that it will not consider either Plaintiff's February 6, 2014 filing or his February 10, 2014 filing. These filings appear to arise from Plaintiff's mistaken belief that Defendants are seeking summary judgment. Further, Plaintiff filed his "Opposition to Defendants Motion to Dismiss" on February 21, 2014. This Court construes that document as Plaintiff's Memorandum in Opposition to the instant Motion. Because Plaintiff filed his Memorandum in Opposition after Defendants filed their Reply, the Reply only addresses the two filings titled "Opposition to Defendants Motion for Summary Judgment." This Court, however, finds that it is unnecessary for Defendants to respond to Plaintiff's Memorandum in Opposition.
As in the original Complaint, Plaintiff's Second Amended Complaint asserts both: 1) federal question jurisdiction over claims arising under federal law, with supplemental jurisdiction over claims arising under state law; and 2) diversity jurisdiction. [Second Amended Complaint at JURISDICTION AND VENUE ¶¶ 1-4.
Amended Count IV appears to allege violations of 17 C.F.R. § 230.500 et seq., Regulation D, the Rules Governing the Limited Offer and Sale of Securities Without Registration Under the Securities Act of 1933 ("Regulation D"). Amended Count IV alleges that Defendants "have disseminated information to, and solicited capital investments from, prospective investors about the various projects which were conceived by Plaintiff Barker, without benefit of a Prospectus and Offering Circular." [Second Amended Complaint at ¶ 126.]
Regulation D does not contain requirements regarding a prospectus and an offering circular for the offer and sale of securities under Regulation D. This Court will liberally construe Plaintiff's Amended Count IV as alleging violations of the Securities Act of 1933 ("the Securities Act"), instead of alleging violations of Regulation D. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) ("A document filed pro se is to be liberally construed." (citation and internal quotation marks omitted)). The Securities Act does not contain a provision requiring the issuance of an offering circular with the offer and/or sale of securities. Thus, the alleged offer and/or sale of securities without an offering circular is not a violation of the Securities Act.
The Securities Act does prohibit the offer and/or sale of securities without a prospectus. See 15 U.S.C. § 77b(a)(10) (defining the term "prospectus"); 15
Any person who —
(Emphases added.) Even assuming, arguendo, that Plaintiff can prove that Defendants offered and/or sold securities without a required prospectus, Plaintiff has not alleged that Defendants offered and/or sold the securities in question to him. Defendants therefore are not liable to Plaintiff for the alleged violation of the Securities Act.
Amended Count IV fails to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (quoting and citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). Further, based on the allegations of the Second Amended Complaint and in light of the fact that Plaintiff has already had the opportunity to cure the defects in this claim, this Court finds that further amendment of Amended Count IV would be futile. See Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir.1987) (noting that "courts have discretion to deny leave to amend a complaint for futility" (citation and quotation marks omitted)).
Defendants' Motion is GRANTED as to Amended Count IV, and Amended Count IV is DISMISSED WITH PREJUDICE.
In the 10/16/13 Order, this Court concluded that Plaintiff's claim for "VIOLATION OF INTERSTATE COMMERCE LAWS" failed to state a claim because it did not "identify the specific laws Defendants allegedly violated, nor [did] it state how Plaintiff was harmed by the alleged violations." 978 F.Supp.2d at 1174. Plaintiff has amended this claim to include the allegations that:
[Second Amended Complaint at ¶ 139.] Plaintiff's claim for the "VIOLATION OF INTERSTATE COMMERCE LAWS" (Amended Count XV) now alleges violations of both federal tax laws and state tax laws. This Court finds that, construed liberally, Plaintiff's Amended Count XV alleges "a short and plain statement of the claim showing that [Plaintiff] is entitled to relief." See Fed.R.Civ.P. 8(a)(2).
These alleged violations, however, have only injured Plaintiff by subjecting him to
Ass'n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 969-70 (9th Cir.2013) (some alterations in Bonneville Power).
Insofar as Plaintiff has only alleged that he faces potential tax liability and penalties as a result of Defendants' alleged violations of federal and state tax laws, Plaintiff has not alleged an injury in fact. Even considering the allegations in the Second Amended Complaint as a whole, this Court concludes that Plaintiff has not pled sufficient factual allegations that would support a reasonable inference that Plaintiff has standing to pursue the claims in Amended Count XV. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Amended Count XV therefore fails to state a claim that is plausible on its face. This Court, however, finds that it is possible to cure the defects in Amended Count XV by amendment, if Plaintiff can allege that he faces actual or imminent tax liabilities or penalties as a result of Defendants' alleged violations of federal and state tax laws. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) ("Dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment." (citation and quotation marks omitted)).
Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to
In the instant Motion, Defendants argue that Plaintiff's Second Amended Complaint still fails to allege sufficient factual allegations that would support a reasonable inference that Plaintiff has standing to pursue his state law claims. Defendants therefore urge this Court to dismiss all of Plaintiff's state law claims with prejudice. [Mem. in Supp. of Motion at 18.]
In the 10/16/13 Order, this Court set forth the applicable Hawai'i law relevant to the analysis of Plaintiff's standing to pursue his state law claims, 978 F.Supp.2d at 1174-76, and this Court incorporates that analysis into this Order. In response to the 10/16/13 Order, Plaintiff has included numerous allegations in the Second Amended Complaint alleging that: Defendants' actions have harmed him personally; when he did the work connected with the projects that are at issue in this case ("the Projects"),
For the purposes of the instant Motion, this Court assumes that Plaintiff's factual allegations are true. See Harris v. Amgen, Inc., 738 F.3d 1026, 1035 (9th Cir. 2013) ("We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party." (citation and quotation marks omitted)). The state law claims in the Second Amended Complaint, however, still rely upon the allegations that: 1) Defendants committed, through the 8/18/11 Letter of Intent, the 9/1/11 Joint Venture Agreement, and the 10/13/11 GPE 60 Letter Agreement, to secure funding for the Projects; and 2) Defendants failed to fulfill their obligations to secure such funding. [Second Amended Complaint at ¶¶ 51-55, 80, 116.] Plaintiff alleges that, as a result of Defendants' failure to provide the agreed upon funding, the Projects did not proceed, "which has been the direct causation of financial harm to Plaintiff Barker personally." [Id. at ¶ 79.] This allegation, however, is a legal conclusion, and the tenet that a court must accept as true all of the allegations contained in a complaint — "is inapplicable to legal conclusions." Iqbal, 129 S.Ct. at 1949.
Although the 8/18/11 Letter of Intent is addressed to Plaintiff and Garrett Smith, it is addressed to Plaintiff in his capacity as "Executive Vice President" of CPL, and the letter expressly states that it "is executed by and between" TVXA and CPL. [Second Amended Complaint, Exh. 4 at 1.] Plaintiff, individually, is not a party to the agreement, which merely notes that CPL "represent[s] the interests of Garrett Smith, Chuck Barker, and affiliates." [Id.]
Similarly, the 9/1/11 Joint Venture Agreement and the 10/13/11 GPE 60 Letter Agreement are between GPE and CPL. [Complaint, Exh. 2 at 1;
First, the fact that Plaintiff individually expended time and resources in the development of the Agreements and/or in the events that arose out of the Agreements does not change the fact that he is not a party to any of the Agreements. Further, although the Agreements may have acknowledged Plaintiff's contributions, nothing in any of the Agreements indicates that Plaintiff, as an individual, was an intended third-party-beneficiary of that agreement. See Ass'n of Apartment Owners of Newtown Meadows ex rel. Bd. of Dirs. v. Venture 15, Inc., 115 Haw. 232, 269-70, 167 P.3d 225, 262-63 (2007) (describing intended third-party-beneficiary exception to the general rule that "third parties do not have enforceable contract rights" (citation and quotation marks omitted)). This Court therefore concludes that Plaintiff, as an individual, does not have standing to bring claims for breach of the Agreements or to otherwise enforce Defendants' obligations under the Agreements. See 10/16/13 Order, 978 F.Supp.2d at 1174-76. Thus, Plaintiff's Amended Count VIII (BREACH OF CONTRACT) and Amended Count IX (ANTICIPATORY BREACH OF CONTRACT) each fails to state a claim that is plausible on its face.
Insofar as Plaintiff's Amended Count II (BREACH OF FIDUCIARY RESPONSIBILITY) and Plaintiff's Amended Count XIII (NEGLIGENCE)
Based on the allegations of the Second Amended Complaint and in light of the fact that Plaintiff has already had the opportunity to cure the standing defects in
Further, Amended Count III (PROFESSIONAL MISCONDUCT) alleges that certain of the individual Defendants violated the standards of conduct of their professions relevant to their roles in the Projects. For example, the Second Amended Complaint alleges that Defendant Hall is a licensed attorney and Defendant Gottlieb is a licensed insurance agent. [Second Amended Complaint at ¶ 124.] Insofar as Plaintiff, individually, was not a party to the Agreements, none of the individual Defendants represented Plaintiff, individually, in the Projects. Plaintiff therefore lacks standing to raise any professional misconduct that the individual Defendants allegedly committed in connection with the Projects. Based on the allegations of the Second Amended Complaint and in light of the fact that Plaintiff has already had the opportunity to cure the standing defects his professional misconduct claim, this Court finds that further amendment of Amended Count III would be futile.
Defendants' Motion is GRANTED as to Amended Count II, Amended Count III, Amended Count VIII, Amended Count IX, Amended Count X, and Amended Count XIII, which are DISMISSED WITH PREJUDICE.
Amended Count I (FRAUD), Amended Count V (MISREPRESENTATION), Amended Count VI (MALFEASANCE), Amended Count VII (MISAPPROPRIATION OF CORPORATE FUNDS), and Amended Count XIV (TORTIOUS INTERFERENCE) also allege actions and omissions related to the Agreements, but these claims do not seek to enforce the Agreements. Instead, these claims allege that Defendants' actions caused various types of harm to the LLCs. In spite of Plaintiff's amendments, these claims do not allege that Defendants' actions harmed Plaintiff individually. As previously noted, Plaintiff, as an individual, is not a party to the Haina Mill Purchase Contract. Thus, Plaintiff is not an owner of the Haina Mill property, nor is he an owner of any other property or assets of the LLCs.
This Court, however, finds that it is arguably possible for Plaintiff to cure the standing defects in these claims. Plaintiff's Supplemental Memorandum indicates that he may be able to allege a plausible basis for standing because he has a distributional interest in the assets of LLCs.
In addition to the fraud claim in Amended Count I, Plaintiff also alleges fraud-based claims in Amended Count V (MISREPRESENTATION) and Amended Count VI (MALFEASANCE). This Court applies the following standard in reviewing whether a plaintiff has sufficiently pled a fraud claim:
Lindsay v. Bank of Am., N.A., Civil No. 12-00277 LEK-BMK, 2012 WL 5198160, at *10-11 (D.Hawai'i Oct. 19, 2012) (some alterations in Lindsay).
Amended Count I alleges that "Defendants Gottlieb, Hall, TVXA and GPE have defrauded Plaintiff by engaging in written contractual agreements which specifically iterate the responsibilities of persons, including Plaintiff Barker, and then Defendants later attempted to change or abrogate entirely their duties, and repeatedly attempt to replace such agreements with new agreements." [Second Amended Complaint at ¶ 121.] Even if this Court liberally construes Amended Count I as alleging that Defendants Gottlieb, Hall, TVXA and GPE fraudulently attempted to alter certain agreements, the Second Amended Complaint does not allege the time, place, and content of the fraud that each of those defendants allegedly engaged in, including which specific agreements that each defendant fraudulently attempted to alter. The current factual allegations in this portion of Amended Count I do not meet the heightened pleading standard for a fraud claim. This Court, however, finds that it is arguably possible for Plaintiff to cure the defects in this portion of Amended Count I.
Amended Count VI alleges that "Defendants Gottlieb and Dubowsky have committed an ongoing practice of personal and corporate malfeasance, including obtaining, using, and expending of funds for conduct of matters of business ... and keeping secret, clandestine, making unauthorized and unapproved decisions and expenditures." [Id. at ¶ 128.] The Second Amended Complaint does not allege the time, place, and content of the fraud that Defendant Gottlieb and Defendant Dubowsky each engaged in, including the specific fraudulent expenditures and decisions each allegedly made. The current factual allegations in Amended Count VI do not meet the heightened pleading standard for a fraud claim. This Court, however, finds that it is arguably possible for Plaintiff to cure the defects in Amended Count VI.
Amended Count V and the remainder of Amended Count I allege that certain Defendants made fraudulent representations about their ability to secure financing for the projects at issue in this case. [Id. at ¶ 120 ("Defendants Gottlieb, Borneman, Hall, Dubowsky, TVXA, and GPE have enticed and fraudulently caused Plaintiff Barker to believe that they intended to and were capable of providing capital and financing such as would fund the subject projects."); id. at ¶ 127 ("Defendants Gottlieb, Borneman, Hall, TVXA, and GPE have made multiple material misrepresentations as to their availability and access to capital in the amounts to which they had represented they were capable of provided [sic] for the initiation and conduct of business of the subject business enterprises.").] The current factual allegations of these claims do not meet the heightened pleading standard for fraud claims. Moreover, this Court has stated that, under Hawai'i law, "representations about future events are not sufficient to support a fraud claim." Niutupuivaha v. Wells Fargo Bank, N.A., Civil No. 13-00172 LEK-KSC, 2013 WL 3819600, at *13 (D.Hawai'i July 22, 2013) (some citations omitted) (citing Pancakes of Haw., Inc. v. Pomare Props. Corp., 85 Haw. 300, 312, 944 P.2d 97, 109 (Haw. App.1997) ("The false representation [for purposes of fraud], to be actionable, must relate to a past or existing material fact, and not to the happening of future events.
Defendants' Motion is GRANTED as to Amended Count V and as to the portion of Amended Count I alleging fraud regarding the future availability of financing. Those claims are DISMISSED WITH PREJUDICE. Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to Amended Count VI and the portion of Amended Count I alleging fraudulent alteration of agreements. Those claims are DISMISSED WITHOUT PREJUDICE.
Amended Count VII alleges:
[Second Amended Complaint at ¶ 130.] This claim is similar to Amended Count VI, but Amended Count VII does not sound in fraud, and therefore this claim does not need to meet the heightened pleading standard. Defendants acknowledge that "[u]nder Hawai'i law, `[i]t is fundamental that directors and officers must use corporate funds for corporate purposes only or they will be liable for misappropriation, diversion, or conversion of corporate assets.'" [Mem. in Supp. of Motion at 26 (quoting Lussier v. Mau-Van Development, Inc., 4 Haw.App. 359, 371, 667 P.2d 804, 814 (Ct.App.1983)).] Defendants, however, argue that Amended Count VII does not plead sufficient factual allegations to meet the pleading standards of Iqbal and Fed.R.Civ.P. 8(a)(2). [Id. at 26-27.] This Court disagrees, assuming that Plaintiff amends this count to allege the harm to his distributional interest that he describes in his Supplemental Memorandum. If Plaintiff adds the allegations regarding the damages to his distributional interests that the alleged misappropriation of corporate funds caused, this Court would find that Plaintiff's misappropriation of corporate funds claim is sufficiently pled. Thus, this Court finds that further amendment of Amended Count VII would not be futile.
Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to Amended Count VII, which is DISMISSED WITHOUT PREJUDICE.
Amended Count XIV alleges:
[Second Amended Complaint at ¶ 138.]
The Hawai'i Supreme Court has stated that:
Minton v. Quintal, 131 Haw. 167, 191, 317 P.3d 1, 25 (2013). To the extent that Plaintiff attempts to allege a tortious interference with prospective contractual relations claim, he would have to establish these elements and the additional element that the Defendants named in that claim "acted without proper justification." See Whitey's Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc., 110 Haw. 302, 317 n. 25, 132 P.3d 1213, 1228 n. 25 (2006) ("In addition to the elements required to establish a claim for tortious interference with prospective business advantage, a plaintiff asserting a claim for tortious interference with prospective contractual relations must also prove that `the defendant acted without proper justification.'" (citation omitted)).
On a motion to dismiss, this Court need only determine if there are sufficient factual allegations to support a reasonable inference of liability. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The current factual allegations of Amended Count XIV are not sufficient to support a reasonable inference of liability either as to: 1) the alleged interference with Plaintiff's individual prospective business advantage or Plaintiff's prospective contractual relations; or 2) the LLCs' prospective business advantage or the LLCs' prospective contractual relations (assuming that Plaintiff can amend this portion of his claim to allege how his distributional interests in the LLCs' assets were harmed by the alleged interference). This Court, however, finds that it is arguably possible for Plaintiff to cure the defects in Amended Count XIV by amendment.
Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to Amended Count XIV, which is DISMISSED WITHOUT PREJUDICE.
Amended Count XI alleges theft of Plaintiff's intellectual property, and Amended Count XII alleges theft of Plaintiff's work product. Amended Count XI addresses seventeen items, including, for example:
[Second Amended Complaint at ¶¶ 135.a.-q.] Amended Count XII addresses seventeen items that are substantively identical to the items identified in Amended Count XI. [Id. at ¶¶ 136.a.-q.]
Plaintiff alleges that these items are either intellectual property or personal work "belonging to, conceived by, devised and invented by, and developed by the Plaintiff Barker." [Id. at ¶¶ 135-36.] Plaintiff alleges that Defendants committed theft of these items, and others, and that Defendants have not compensated him. [Id.] These portions of Amended Count XI were part of Count XI in the original Complaint. Amended Count XII is a new claim.
As previously noted, Plaintiff, individually, was not a party to the Agreements. In the 10/16/13 Order, this Court stated that "the state law claims appear to be based upon activities that Plaintiff was involved in on behalf of the LLCs. Neither the allegations in the Complaint nor the exhibits attached thereto indicate that Plaintiff was acting on his own behalf in the events at issue in this case." 978 F.Supp.2d at 1176. In the Second Amended Complaint, Plaintiff added the following allegations to Count XI:
[Second Amended Complaint at ¶ 135.] Amended Count XII also includes these allegations. [Id. at ¶ 136.] The original Count XI alleged that Plaintiff created ideas and opportunities, etc., for the Projects, but that the work belonged to him. Thus, the only new allegation is that Plaintiff lost fiscal opportunities. Plaintiff, however, has not cured the defects in his theft of intellectual property claim because he has not presented any allegations that Defendants agreed to compensate him individually for the intellectual property that he created to further the Projects. The same defect applies to Plaintiff's new theft of work product claim. This Court therefore concludes that Amended Count XI and Amended Count XII each fails to state a plausible claim for relief.
This Court must also determine whether allowing Plaintiff to amend these claims would be futile. The closest cognizable tort claim under Hawai'i law to
Freddy Nobriga Enters., Inc. v. Hawai'i Dep't of Hawaiian Home Lands, 129 Haw. 123, 129-30, 295 P.3d 993, 999-1000 (Ct.App.2013) (some alterations in Freddy Nobriga Enters.). This Court, however, has ruled that "the tort claim of conversion does not extend to the unauthorized taking of intangible property." J & J Sports Prods., Inc. v. Alcantara, Civil No. 13-00220 LEK-RLP, 2014 WL 1669070, at *5 (D.Hawai'i Apr. 25, 2014). Insofar as a conversion claim alleging a taking of intellectual property or work product
Defendants' Motion is GRANTED as to Amended Count XI and Amended Count XII, which are DISMISSED WITH PREJUDICE.
This Court has dismissed the following claims with prejudice: the portion of Amended Count I alleging fraud regarding the future availability of financing, Amended Count II, Amended Count III, Amended Count IV, Amended Count V, Amended Count VIII, Amended Count IX, Amended Count X, Amended Count XI, Amended Count XII, and Amended Count XIII.
This Court has dismissed the following claims without prejudice: the portion of Amended Count I alleging fraudulent alteration of agreements, Amended Count VI, Amended Count VII, Amended Count XIV, and Amended Count XV.
This Court grants Plaintiff leave to file a third amended complaint setting forth the claims that this Court has dismissed without prejudice, if Plaintiff can amend those claims to cure the defects identified in this Order. Plaintiff shall file his third amended complaint by no later than
This Court emphasizes that Plaintiff does not have leave to add new parties, claims, or theories of liability. If Plaintiff wishes to make other amendments, he must file a motion showing good cause for an amendment to the Rule 16 Scheduling Order because the deadline to add parties and amend pleadings was May 9, 2014. See Rule 16 Scheduling Order, filed 2/3/14 (dkt. no. 61), at 2.
This Court CAUTIONS Plaintiff that, if he fails to file his third amended complaint by
On the basis of the foregoing, Defendants' Motion to Dismiss Second Amended Complaint, filed January 23, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. Plaintiff shall file his third amended complaint, consistent with the terms of this order, by no later than
IT IS SO ORDERED.
10/16/13 Order, 978 F.Supp.2d at 1170.
This Court notes that the copy of the Haina Mill Purchase Contract that Plaintiff submitted as Exhibit 3 does not have page numbers. The page numbers in this Court's citation to Exhibit 3 refer to the pages number on the Exhibit as it appears in the district court's ECF system.
[Second Amended Complaint at ¶ 137.]