MAYO v. TITLEMAX OF DELAWARE, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID V. MAYO, individually and :

on behalf of others similarly situated, :

:

v. : CIVIL ACTION NO. 21-2964

:

TITLEMAX OF DELAWARE, :

ET AL. :

McHUGH, J. January 4, 2022

MEMORANDUM

Plaintiff brings this action under a variety of consumer protection statutes challenging the

high rate of interest Defendant TitleMax of Delaware charged him for an auto loan. Plaintiff

physically secured the loan at one of Titlemax’s offices in Delaware, though his car is registered

and garaged in Pennsylvania. The Third Circuit has previously held that Pennsylvania’s strong

interest in protecting its citizens against usurious interest warrants the application of Pennsylvania

law in such a case. Kaneff v. Delaware Title Loans, Inc., 587 F.3d 616 (3d Cir. 2009). Defendants

here move to dismiss, relying in part upon a choice-of-law provision favoring Delaware law, but

more broadly on the ground that application of Pennsylvania law would violate the dormant

Commerce Clause of the Constitution. The individual defendant, Titlemax President Tracy Young,

separately challenges the claims against him on personal jurisdiction grounds and for failure to

state a claim. For the reasons set forth below, I will deny Defendants’ motion as to the state law

and TILA claims. I will, however, grant the motion as to the claims against Defendant Young, but

without prejudice should discovery establish a proper basis for a claim against him.

I. Factual Background

Plaintiff asserts claims under the Loan Interest and Protection Law (LIPL) and the Unfair

Trade Practices and Consumer Protection Law (UTPCP), in addition to federal racketeering and

consumer lending statutes, the Racketeer Influenced and Corrupt Organizations Act (RICO) and

the Truth-in-Lending Act (TILA).

Except for the alleged involvement of Mr. Young, the parties largely agree on the core facts

at issue in the operative Amended Complaint. Defendant TitleMax is a Delaware based lender,

operating out of brick-and-mortar stores, that makes personal loans secured by liens on title to a

consumer’s motor vehicle. Despite its physical stores being located in Delaware, TitleMax makes

a significant number of loans to Pennsylvania consumers. Am. Compl. ¶¶ 8-10, ECF 7.

Plaintiff David V. Mayo is a resident of Pennsylvania who took out a loan from TitleMax

that was secured against the title to his car. In April 2021, Plaintiff took out a loan from TitleMax

for $7,751.39 at a 132.01% APR paid over the course of 48 monthly installments. Loan Agreement

at 3, ECF 7-5. This is far in excess of the 6% maximum lawful interest rate permitted by

Pennsylvania law for small-dollar loans to consumers. 41 P.S. § 201. He applied for the loan at a

physical TitleMax location in Wilmington, Delaware. Am. Compl. ¶ 23; Loan Agreement at 2.

Plaintiff’s loan agreement contains a Delaware choice-of-law provision. Loan Agreement at 6 ¶

22. The Loan Agreement lists Plaintiff’s address in Pennsylvania. Id. Plaintiff makes payments

on the loan from Pennsylvania. Am. Compl. ¶ 30. The car is kept in and principally used in

Pennsylvania where Plaintiff lives, Am. Compl. ¶¶ 18, 28, it is titled, registered, and licensed in

Pennsylvania, Am. Compl. ¶ 17, and TitleMax recorded a lien with the Pennsylvania Department

of Transportation on the car, Am. Compl. ¶ 29. If Plaintiff defaults on his payment schedule,

TitleMax retains the right to repossess the car. Loan Agreement at 5 ¶ 12.

There is some dispute over the facts surrounding Plaintiff’s actual signing of the loan that

relate to the TILA claim, which at the present juncture must be construed in favor of the Plaintiff.

According to the Complaint:

TitleMax hid the terms from Mr. Mayo when he took out the loan. The TitleMax

loan officer prepared the loan agreement on a computer located at a counter in the

TitleMax office. The computer screen was facing the loan officer, not Mr. Mayo.

The loan officer had Mr. Mayo accept the agreement on the computer, but the

loan officer did not turnover control of the computer to Mr. Mayo so he could see

the entirety of the agreement he was accepting. TitleMax did not let Mr. Mayo

see the disclosure of the annual percentage rate, finance charge, total payments, or

payment schedule.

Compl. ¶ 23.

II. Legal Standard

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is governed by the well-established

standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

III. Discussion

A. Pennsylvania Law Applies

In Kaneff v. Delaware Title Loans, Inc., 587 F.3d 616 (3d Cir. 2009), the Third Circuit

applied Pennsylvania’s choice-of-law test to determine that Pennsylvania law applied to an auto

title loan made by a Delaware lender to a Pennsylvania consumer, despite a Delaware choice-of-

law clause, because of Pennsylvania’s interest in enforcing its usury laws. This decision was made

on facts almost identical to the facts before me today. As in Kaneff, Pennsylvania “is where [the

Plaintiff] lives … Pennsylvania is also the location of the collateral, Plaintiff’s car, and

[Defendants would be] required to enter Pennsylvania in order to repossess the car … [and]

Pennsylvania will have to live with the aftermath of the transaction.” Id. 623. And, again, as in

Kaneff:

(1) the loan agreement (a) was entered into and signed in Delaware by a Delaware

corporation and a Pennsylvania resident who drove 30 miles to Delaware to obtain

the loan, (b) requires repayment in Delaware and (c) provides that the agreement

shall be “construed, applied and governed” by Delaware law, (2) the lender (a) is

incorporated in Delaware, (b) is licensed and regulated in Delaware by the

Delaware State Bank Commissioner and (c) has its only offices in Delaware.

Id. The Third Circuit applied § 187(2) of the Restatement (Second) of Conflict of Laws which

asks whether applying the law of Delaware “would be contrary to a fundamental policy of a state

which has a materially greater interest than the chosen state in the determination of the particular

issue.” Id. at 621 (quoting § 187(2)). The Third Circuit determined that “Pennsylvania’s interest

in the dispute, particularly its antipathy to high interest rates such as the 300.01 percent interest

charged in the contract at issue, represents such a fundamental policy that we must apply

Pennsylvania law.” Id. 624.

Defendants’ primary rejoinder to the application of Kaneff is that the Third Circuit

considered only what law should be applicable to determining the enforceability of the parties’

arbitration agreement, not whether the statutory Pennsylvania interest limit of 6% should have

applied to the substantive usury claim. Def. Br. at 18-19. Although I agree that the Court of

Appeals was careful to limit its holding to the “determination of the particular issue,” as provided

for in the Restatement, it is hard to take seriously Defendants’ argument that Pennsylvania’s

“fundamental policy” against usurious lending would be deemed dispositive in determining

enforceability of an arbitration clause, but not the substantive legal issue of the legal rate of interest

chargeable on consumer contracts with Pennsylvania citizens. Indeed, the Third Circuit’s specific

focus in Kaneff was Pennsylvania’s usury policy in voiding the arbitration provision because the

plaintiff argued that the usurious terms of the loan itself would make the arbitration agreement

substantively unconscionable under Pennsylvania law. As the Court explicitly stated, “we do

consider the usury issue as part and parcel of whether the arbitration clause should be enforced.

The choice of law analysis cannot be divorced from that issue.” Kaneff, 587 F.3d at 622 (emphasis

added). As previously noted by a member of this bench, “[a]ccordingly, the Court's choice of law

analysis is not only persuasive—it has precedential effect.” Gregoria v. Total Asset Recovery, Inc.,

CIV.A. 12-4315, 2015 WL 115501, at *4 n.6 (E.D. Pa. Jan. 7, 2015) (Stengel, J.).

Defendants seek to go around Kaneff, asking me to ignore it and find instead that the

Commerce Clause of the United States Constitution renders any application of the Restatement

(Second) of Conflict of Laws § 187(2) unconstitutional. Specifically, Defendants ground their

argument in a particularly expansive view of the dormant Commerce Clause advanced by Judge

Posner of the Seventh Circuit in Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010),

a view which does not appear to enjoy broad support. I am not persuaded that Midwest Title

represents a sound approach to the dormant Commerce Clause, and in any event, it does not

provide a basis to depart from the Third Circuit’s controlling precedent.

The dormant Commerce Clause is a judicially created doctrine based upon an inference

that the Commerce Clause’s positive expression of Congress’s power to regulate interstate

commerce further implies a prohibition against the power of states to pass laws that infringe upon

Congress’s express authority. It first arose in dicta from Justice Marshall in Gibbons v. Ogden, 22

U.S. 1, 209-11 (1824), a case that otherwise appears to stand for the well-established proposition

that the Supremacy Clause may require preemption of state laws where Congress has legislated.

But Marshall’s use of the adjective “dormant” ultimately led to a long line of cases seeking to

balance “the Constitution’s special concern both with the maintenance of a national economic

union unfettered by state-imposed limitations on interstate commerce and with the autonomy of

the individual States within their respective spheres.” Healy v. Beer Inst., Inc., 491 U.S. 324, 335–

36 (1989).

Much of the case law invoking the dormant Commerce Clause is aimed at economic

protectionism and discrimination among the states, leading the Supreme Court to adopt a per se

rule to strike down expressly discriminatory state regulations. Where a state regulation is not

expressly discriminatory, the Court has applied a balancing test: “Where the statute regulates even-

handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are

only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive

in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

Following Pike, the Third Circuit addressed whether Pennsylvania’s attorney general could

enforce Pennsylvania “consumer credit law to … Illinois contracts performed entirely outside

Pennsylvania and in interstate commerce” under the Commerce Clause. Aldens, Inc. v. Packel,

524 F.2d 38, 42 (3d Cir. 1975). After dismissing arguments that state usury laws were preempted

or discriminatory, the Third Circuit refused to hold that Pennsylvania usury laws were a burden on

interstate commerce. It framed the question by noting that “[t]he burden on interstate commerce

does not depend upon the happenstance of respective locations of buyer and seller. The

fundamental issue is whether the national interest in the free movement of money, credit, goods

and services outweighs the valid local interest in restricting maximum interest rates on consumer

‘loans’ and setting uniform contract terms for such transactions.” 524 F.2d at 47–48. The Aldens

Court then deferred to Congress on the question of burden, noting that, “despite the burden on

commerce,” Congress has permitted states to “enact varying usury laws and varying contract

laws,” and therefore “any judgment that the present proliferation of regulations of consumer credit

transactions has burdened commerce unduly must be made by Congress.” Id. at 48–49.

Congress’s decision in the Truth-in-Lending Act to defer to the states “on the matter of maximum

interest rates” evinces Congress’s judgment that there is no such burden in this field.

Defendants seek to avoid Aldens in the same way they seek to avoid Kaneff, suggesting

that later cases involving the dormant Commerce Clause call it into question, again relying on

Midwest Title. There, Judge Posner placed great emphasis on Healy v. Beer Institute, where the

Supreme Court struck down a Connecticut law setting price controls for beer. 491 U.S. 324 (1989).

Those controls placed restraints upon out of state beer distributors selling into Connecticut that

were tied to the price of beer in neighboring states. Id. at 326. The Court’s express holding was

that the pricing scheme violated the Commerce Clause because in practical terms it regulated the

prices that beer distributors would have to set outside Connecticut.1 Consistent with earlier

decisions, it observed that the Commerce Clause limits state laws that regulate “commerce

occurring wholly outside the boundaries of a State.” Id. at 336. In a later case, PhRMA v. Walsh,

538 U.S. 644, 669 (2003) the Court refused to apply Healy to Maine’s prescription purchasing

statute because “Maine is not tying the price of its in-state products to out-of-state prices.” It

underscored the basis for its decision in Healy, quoting an earlier opinion by Justice Cardozo

holding that “New York has no power to project its legislation into Vermont by regulating the

price to be paid in that state for milk acquired there.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,

521 (1935)).

In Healy, the Court explicitly categorized the case as one involving “price-affirmation

statutes.” 491 U.S. at 331. Courts that have since considered the meaning of Healy have generally

adhered to this narrow interpretation, given the emphasis on protecting against discriminatory

1 Healy is replete with dicta, but its holding is consistent with an earlier decision striking down a

similar statute, Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 580

(1986). There the Court found that a state price-regulation statute that effectively regulated the price to be

paid in other states violated the Commerce Clause because “[w]hile a State may seek lower prices for its

consumers, it may not insist that producers or consumers in other States surrender whatever competitive

advantages they may possess.” Cf. Healy, 491 U.S. at 339 (“The Connecticut statute, like the New York

law struck down in Brown–Forman, requires out-of-state shippers to forgo the implementation of

competitive-pricing schemes in out-of-state markets because those pricing decisions are imported by

statute into the Connecticut market regardless of local competitive conditions.”). In American Express v.

Sidamon-Eristoff, 669 F.3d 359, 373 (3d Cir. 2012), the Third Circuit summarized the holding in Healy

by quoting the relevant language from Brown-Forman.

regulations in cases applying the Commerce Clause. See Energy and Env. Leg. Inst. v. Epel, 793

F.3d 1169 (10th Cir. 2015) (Gorsuch, J.) (treating the Healy line of cases as suggesting “a concern

with preventing discrimination against out-of-state rivals or consumers” and refusing to apply

them where the statute “isn’t a price control statute, it doesn’t link prices paid in Colorado with

those paid out of state, and it does not discriminate against out-of-staters”); Assn. des Eleveurs de

Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 951 (9th Cir. 2013) (“Healy and Baldwin are

not applicable to a statute that does not dictate the price of a product and does not tie the price of

its in-state products to out-of-state prices.”); see also Online Merchants Guild v. Cameron, 995

F.3d 540, 559 (6th Cir. 2021) (Kentucky emergency supply price gouging laws enforced against

sellers on Amazon market place did not violate Healy’s extraterritoriality prohibition because it

did not have the inevitable effect of setting prices to other consumers); SPGGC, LLC v.

Blumenthal, 505 F.3d 183, 194 (2d Cir. 2007) (“SPGGC fails to allege any facts tending to show

… how the effects of the Gift Card Law might be projected into other state. … Unlike the price-

affirmation laws in Healy and Brown–Forman, the Gift Card Law does not, by its terms or effects,

directly regulate sales of gift cards in other states.”).

The Third Circuit has similarly restricted its application of Healy. It has done so because

of the well-established rule that, “in the absence of conflicting legislation by Congress, there is a

residuum of power in the state to make laws governing matters of local concern which nevertheless

in some measure affect interstate commerce or even, to some extent, regulate it.” S. Pac. Co. v.

State of Ariz. ex rel. Sullivan, 325 U.S. 761, 766–67 (1945). American Express v. Sidamon-

Eristoff, 669 F.3d 359, 373 (3d Cir. 2012) is perhaps the clearest expression of the Third Circuit’s

view. There, it interpreted Healy as holding that “States may not deprive businesses and

consumers in other States of whatever competitive advantages they may possess based on the

conditions of the local market.” Id. (quoting Healy, 491 U.S. at 339). Sidamon-Eristoff concerned

a New Jersey statute that modified the abandonment period for travelers’ checks. American

Express brought a Commerce Clause challenge arguing that the law potentially required it to raise

prices for travelers checks in other states to compensate for losses that flowed from the change in

the law. Id. at 373-74. The Court of Appeals found no constitutional violation arising out of any

costs of compliance measures that the company might adopt, despite Amex’s argument that they

could potentially affect prices in other states. Similarly, here, Pennsylvania’s usury laws do not

directly regulate TitleMax’s sales of loans to residents of other states, do not force TitleMax to

“conform its out-of-state practices to less favorable in-state conditions,” or do anything to

“prevent[] other states from regulating [consumer loan products] differently … .” Id. 373.

Prior to Sidamon-Eristoff, the Third Circuit had addressed Healy in two cases involving

state securities laws. In both cases, it explicitly discussed how the conflict of laws doctrine and the

dormant Commerce Clause interact. Instructional Sys. Inc. v. Computer Curriculum Corp.

involved a contract between parties from multiple states. 35 F.3d 813 (3d Cir. 1994). One of the

contracting parties objected to the application of New Jersey law under the Commerce Clause. The

Third Circuit found the objection without merit, recognizing that “it is inevitable that a state’s

law, whether statutory or common law, will have extraterritorial effects,” and further observing

that “[w]hile a contract which covers multiple states may raise a difficult choice-of-law question,

once that question is resolved there is nothing untoward about applying one state’s law to the entire

contract, even if it requires applying that state’s law to activities outside the state.” 35 F.3d at 825.

In a similar case, A.S. Goldmen & Co., Inc. v. New Jersey Bureau of Securities, 163 F.3d

780, 787 (3d Cir. 1999), the Third Circuit noted an evolution in the law of contracts following the

development of the modern economy and the increasing prevalence of contracts involving parties

from different states. It recognized a shift away from treating contracts as “being rooted in a single

geographical location, such as the place the offer was accepted,” to “the contrasting modern

approach … to recognize that contracts formed between citizens in different states implicate the

regulatory interests of both states.” Id. at 787. Turning to the facts of the case, the Court

concluded that “[a] contract between Goldmen in New Jersey and a buyer in New York does not

occur ‘wholly outside’ New Jersey, just as it does not occur ‘wholly outside’ New York. Rather,

elements of the transaction occur in each state, and each state has an interest in regulating the

aspect of the transaction that occurs within its boundaries.” Id. The Goldmen Court observed that

the power to regulate securities transactions “is one that most states have long exercised, and that

Congress has for decades expressly allowed to continue. This is not the sort of ‘parochial’ state

power that Justice Cardozo warned of in Baldwin, the broad exercise of which ‘would … invite a

speedy end of our national solidarity.’” Id. at 789 (quoting Baldwin, 294 U.S. at 523). Similarly,

here, the contract with Titlemax did not “occur” wholly within the state of Delaware or wholly

outside of Pennsylvania, and states have long regulated rates of interest through the enactment of

usury laws.

Despite the relevant precedent discussed above, Defendants would have me follow

Midwest Title, where the court relied upon Healy to sustain a Commerce Clause challenge to the

enforcement of an Indiana usury statute against Illinois auto title lenders. 593 F.3d 660 (7th Cir.

2010). Midwest Title is both inconsistent with decisions of the Third Circuit and unpersuasive in

its own right. The opinion purports to recognize that the Supreme Court’s concern in Healy was

that the statute in question had the practical effect of regulating prices in other states, 593 F.3d at

666, but then ventures far afield with a series of hypotheticals and reflections on facts that are not

apparent from any of the pleadings cited. Midwest Title rejects both the Third Circuit’s opinion in

Instructional Systems, Inc., and the First Circuit’s opinion in PhARM v. Concannon, 249 F.3d 66

(1st Cir. 2001), with no mention that the First Circuit was affirmed by the Supreme Court in

PhARM v. Walsh, 538 U.S. 644 (2003). PhARM has particular relevance here, because the

Supreme Court expressly declined to apply Healy where the state was “not tying the price of its

in-state products to out-of-state products.” Id. at 669.

Besides its aggressive construction of Healy, Midwest Title is undermined by its reliance

upon Quill Corp. v. North Dakota, 504 U.S. 298 (1992), as support for the proposition that

regulation beyond a state’s borders violates the Commerce Clause. Quill relied heavily on physical

presence as an important factor but was expressly overruled a few years ago in South Dakota v.

Wayfair Inc., 138 S.Ct. 2080 (2018). Although cross-state, storefront based title lending presents

a different problem in regulation than assessing sales taxes against online lenders, the Wayfair

Court’s concern about judicially created doctrines that limit legitimate state policies, without the

input of Congress, rings true here. See id. at 2093-2096.

Midwest Title also gives insufficient weight to a state’s interest in protecting its own

citizens. The Supreme Court, in the context of state securities laws, has found that the dormant

Commerce Clause is not applicable where a statute is principally applied to a state’s own residents

“whom [a state] indisputably has an interest in protecting.” See CTS Corp. v. Dynamics Corp. of

Am., 481 U.S. 69, 93 (1987); see also Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) (recognizing

that the use of mails would even make transactions with in-state residents interstate commerce, but

that the aspect of an Illinois securities statute that violated the commerce clause was that it would

apply to shareholders “living in other States and having no connection with Illinois”). As noted

by the Second Circuit, if even modest effects beyond a state’s borders are enough to render

regulations unlawful, “almost every state consumer protection law would be considered

‘protectionist’ in a sense prohibited by the Constitution. The meaning of the dormant Commerce

Clause is far narrower.” SPGGC, LLC v. Blumenthal, 505 F.3d 183, 194 (2d Cir. 2007).

In this case, the state usury laws that the Pennsylvania litigant seeks relief under are not

being applied to any of TitleMax’s loans made to non-Pennsylvania citizens, nor does the putative

“price” setting on the loans made to the Pennsylvania consumers have any direct effect on how

TitleMax can set its prices for loans to residents of other states.

Defendants also rely upon TitleMax of Delaware, Inc. v. Weissmann, 505 F. Supp. 3d 353,

359-60 (D. Del. 2020), which held that the Pennsylvania Department of Banking and Securities

could not pursue investigative subpoenas issued to TitleMax in Delaware. As an initial matter,

Weissman is distinguishable. When a governmental entity in one state seeks to extend its power

to another state, more profound issues of interstate sovereignty are raised than in a contract action

between private parties. 2 Beyond that, the persuasive of authority of Weissman is significantly

limited by the cursory nature of the analysis. The court assumed, without explanation, that

Midwest Title provided the controlling standard, with no reference to any Third Circuit precedent

or any of the Commerce Clause decisions from the Supreme Court. And the principal point

Weissman extracted from Midwest Title was its focus on extraterritoriality, even though the

precedent on which Midwest Title relied was subsequently overruled. For these reasons, I decline

to follow Weissman.

In conclusion, Kaneff controls this action, and the claims against Titlemax will not be

dismissed.

2 It is worth noting that Midwest Title was a declaratory judgment action brought against the state,

rather than a private contract action as here.

B. The Claims Against Defendant Young Are Dismissed

Plaintiff alleges that Defendant Young, who is the President and CEO of TitleMax, is liable

for the usurious title loans at issue under 18 U.S.C. § 1962(c). His theory is that Young conducted

or participated in the affairs of TitleMax, allegedly a racketeering enterprise, in its collection of

unlawful debt from Pennsylvania citizen-borrowers. Defendants argue that Plaintiff has failed to

plead sufficient facts to establish that Defendant Young has the minimum contacts with

Pennsylvania necessary for the Court to establish personal jurisdiction. They further argue that

Plaintiff hasn’t sufficiently pleaded Young’s personal involvement in TitleMax’s collection of

illegal debt from Pennsylvania consumers. I agree with the defense that the allegations against

Young are cursory and conclusory as pleaded. “A claim that relies just on ‘conclusory statements’

… without supporting factual allegations, does not establish plausible grounds for relief.” Beasley

v. Howard, 14 F.4th 226, 231 (3d Cir. 2021). Plaintiff’s allegations suggest Young’s involvement

in the alleged racketeering in Pennsylvania solely on the basis of Young’s role as an officer of

TitleMax of Delaware and its parent company TMX Finance, LLC. Compl. ¶¶ 3-4, 51-54. It may

be that further discovery will show that Young has in fact participated in the decision making,

direction, or operation of the allegedly usurious lending at issue here. See, e.g., Pennsylvania v.

Think Finance, Inc., 14-CV-7139, 2016 WL 183289, at *16 (E.D. Pa. Jan. 14, 2016) (upholding

state RICO claims against out-of-state CEO who made statements about usurious lending

programs). At this stage, however, Plaintiff’s conclusory statements are not enough to sustain the

claim against Defendant Young. I will therefore dismiss this claim, albeit without prejudice.

C. The Truth-in-Lending Claims Are Sufficiently Pleaded

Plaintiff’s claims under TILA involve three legal theories: (1) that the TitleMax

employee’s alleged use of the computer in the application process screened the Plaintiff from

viewing the disclosures mandated by 12 C.F.R. § 1026.17; (2) that the disclosures in the loan

agreement did not actually reflect the legal obligations of the parties; and (3) that Plaintiff never

consented to receiving the TILA disclosures electronically. Plaintiff has pleaded sufficient facts to

sustain this claim at the present stage of litigation.

IV. Conclusion

For the reasons set forth above, Defendants’ Motion to Dismiss is granted in part and

denied in part. An appropriate order follows.

/s/ Gerald Austin McHugh

United States District Judge