Borreani et al v. Kaiser Foundation Hopsitals et al, No. 3:2012cv00925 - Document 42 (N.D. Cal. 2012)
Court Description: ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND REMANDING THE CASE FOR LACK OF SUBJECT MATTER JURISDICTION. Signed by Judge Richard Seeborg on 6/22/12. (cl, COURT STAFF) (Filed on 6/22/2012)
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Borreani et al v. Kaiser Foundation Hopsitals et al Doc. 42 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 For the Northern District of California United States District Court 8 12 NATALIE BORREANI, et al., 13 14 15 16 17 18 No. C 12-00925 RS Plaintiffs, v. KAISER FOUNDATION HOSPITALS, et al., ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND REMANDING THE CASE FOR LACK OF SUBJECT MATTER JURISDICION Defendants. ____________________________________/ 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Following Charles Borreani’s death, his surviving relatives filed suit against Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, and Kaiser Permanente Medical Group (collectively “Kaiser”) alleging they withheld critical information from decedent’s doctors about the safety of prescription drugs Neurontin and gabapentin. Defendants move to dismiss this action in its entirety arguing that all asserted claims are preempted under the Employee Retirement Income Security Act (“ERISA”). For the following reasons, defendants’ motion to dismiss is denied and this matter is remanded for lack of subject matter jurisdiction. II. RELEVANT FACTS ORDER DENYING DEFENDANTS’ MOTION TO DISMISS Dockets.Justia.com 1 Kaiser is an integrated managed care consortium that operates medical facilities, employs 2 health care providers, and distributes a variety of medical services. In this capacity, Kaiser sells 3 medical insurance plans to both individuals and employers and regulates which prescription drugs 4 and services should be included in said coverage. Decedent Charles Borreani purchased one of 5 these plans through his employer. As part of this coverage, Kaiser utilizes a centralized Drug 6 Information Service (“DIS”) to research drugs and present information about these drugs to 7 physicians and to the company’s eight regional divisions. Each region’s Pharmacy and 8 Therapeutics (“P&T”) Committee then uses this data to choose the safest and most effective drugs 9 to include in its drug formulary, a catalog of pre-approved medications. Drugs are listed without restrictions, with restrictions, or with a variety of guidelines. If a drug appears without restrictions, 11 For the Northern District of California United States District Court 10 it may be prescribed for whatever condition the physician deems appropriate. Alternatively, if a 12 drug is listed with certain guidelines or restrictions, the physician may consider those limitations 13 when prescribing to patients. Although Kaiser will pay for off-formulary prescriptions, an internal 14 study concluded that over 95% of prescriptions from Kaiser doctors conformed to the formulary 15 guidelines. 16 Pursuant to this evaluation system, Kaiser added the Pfizer drug Neurontin to all regional 17 formularies in 1994. From 1997 to 1999, the drug was listed as unrestricted. Neurontin was 18 tremendously popular and remained on all eight formularies for over ten years. After this period, 19 Kaiser discovered Pfizer was utilizing illegal strategies to market Neurontin for off-label use. 20 Specifically, Pfizer was encouraging physicians to prescribe large doses of the drug to treat 21 neuropathic pain all the while suppressing data linking the medication to the development of 22 suicidal thoughts. 23 Upon learning of this alleged illegal behavior, Kaiser filed suit against Pfizer, joining the 24 multidistrict In re Neurontin Marketing and Sales Practices litigation. At trial, Kaiser agents 25 testified that had the company known of Neurontin’s dangerous side effects, it would not have listed 26 it as unrestricted in the formularies. They also represented that they intended to educate Kaiser 27 physicians about the increased risk of depression associated with high doses of the drug. In March 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 2 1 2010, the jury returned a verdict against Pfizer, finding the company fraudulently marketed 2 Neurontin for off-label use at unsafe doses of greater than 1800 milligrams per day. According to 3 plaintiffs, Kaiser has yet to notify its physicians of the Court’s findings or to modify the formularies 4 to include depression as a side effect of Neurontin or of its generic version, gabapentin. In May 2009, while the Pfizer litigation was pending, decedent Charles Borreani began 5 6 experiencing extremity numbness. He made an appointment with his Kaiser primary care physician 7 who diagnosed him with peripheral neuropathy and prescribed gabapentin. Over the next year and a 8 half, Borreani continued to take gabapentin at varying doses, while simultaneously developing an 9 array of psychiatric symptoms such as, vertigo, drowsiness, blurred vision, and depressive thoughts. In July 2010, he complained again to his primary care physician who increased his gabapentin 11 For the Northern District of California United States District Court 10 dosage to 2,400-3,200 milligrams per day. Two months later, Borreanni committed suicide. Decedent’s surviving relatives filed suit in the County of Alameda Superior Court against 12 13 Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, and Kaiser Permanente Medical 14 Groups. According to the FAC, together, these Kaiser entities provided medical coverage to 15 Borreani, managed the hospital at which he sought treatment, and employed the physicians who 16 prescribed gabapentin. Plaintiffs allege that following the Pfizer litigation, Kaiser wrongfully 17 withheld vital information from its physicians about the efficacy and safety of Neurontin for off- 18 label use in the treatment of peripheral neuropathy. According to plaintiffs, because of this failure 19 to inform, decedent’s doctors were unaware of the side effects associated with the drug and 20 continued to prescribe it for his neurological disorder despite his developing psychiatric illness. The 21 First Amended Complaint (“FAC”) asserts claims for: (1) Intentional Misrepresentation; (2) 22 Negligent Misrepresentation; (3) Concealment; (4) Fraud; (5) Negligent Failure to Warn; (6) 23 Negligence; and (7) Medical Negligence.1 Defendants removed the case to this Court asserting 24 federal question jurisdiction under ERISA, and now move to dismiss the action on the basis of 25 ERISA preemption. III. LEGAL STANDARD 26 27 28 1 Plaintiffs’ original complaint also advanced claims for breach of contract and breach of the implied covenant of good faith and fair dealing. ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 3 1 2 A. Motion to Dismiss 3 Under Federal Rule of Civil Procedure (“FRCP”) 8(a)(2), a complaint must present “a short 4 and plain statement of the claim” demonstrating that plaintiff is entitled to relief. Fed. R. Civ. P. 5 8(a)(2). If the complaint does not meet this standard, the defendant may move to dismiss for failure 6 to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Dismissal is 7 appropriate if the claimant either does not raise a cognizable legal theory or fails to allege sufficient 8 facts to support a cognizable claim. See Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 9 Cir. 1988). Thus, while a legally sufficient complaint does not require “detailed factual allegations,” it must contain more than “unadorned” assertions of harm or bare legal conclusions without factual 11 For the Northern District of California United States District Court 10 support. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 12 U.S. 544, 570 (2007)). In evaluating a Rule 12(b)(6) motion to dismiss, all material allegations in 13 the complaint are accepted as true and construed in the light most favorable to the non-moving 14 party. See Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 15 B. Remand for Lack of Subject Matter Jurisdiction 16 Removal of a state court action to federal court is appropriate only if the federal court would 17 have had original subject matter jurisdiction over the suit. See 28 U.S.C. § 1441(a). If, following 18 removal, a federal court determines there was a defect in the removal procedure or an absence of 19 subject matter jurisdiction, it may remand the action to state court sua sponte or on motion of a 20 party. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). In deciding whether 21 removal was proper, courts strictly construe the statute against finding jurisdiction, and the party 22 invoking federal jurisdiction bears the burden of establishing that removal was appropriate. 23 Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009) 24 (citations omitted). Where doubt exists regarding the right to remove an action, it should be 25 resolved in favor of remand to state court. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 26 1089, 1090 (9th Cir. 2003). 27 IV. DISCUSSION 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 4 1 A. ERISA Preemption 2 Defendants argue that plaintiffs’ FAC must be dismissed because all claims are preempted 3 under ERISA. According to defendants, at base, plaintiffs’ entire suit relates to decedent’s 4 employer sponsored health plan and is, therefore, fully within the scope of ERISA’s civil 5 enforcement scheme. Plaintiffs concede that Borreani’s health plan was an employee welfare 6 benefit plan covered by ERISA, see 29 U.S.C. § 1002, and acknowledge that the two breach of 7 contract claims asserted in their original complaint may have been preempted. They insist, 8 however, that the pleadings, as amended, make no reference to the plan’s language and do not seek 9 to vindicate or to clarify any benefits under the plan. Consequently, ERISA is inapplicable and the 11 For the Northern District of California United States District Court 10 action should be remanded for lack of subject matter jurisdiction. Congress enacted ERISA in order to “provide a uniform regulatory regime over employee 12 benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (explaining that ERISA 13 provides a variety of remedies and sanctions intended to protect the interests of plan participants and 14 beneficiaries). In structuring this regime, Congress included “expansive pre-emption provisions . . . 15 to ensure that employee benefit plan regulation remained exclusively a federal concern.” Id.; see 29 16 U.S.C. § 1144. Although these provisions are broadly worded, application of the legislative 17 language has developed from a “plain language interpretation, in which ERISA would have 18 preempted nearly everything, to a more pragmatic interpretation, in which courts seek to preserve 19 the goals of Congress . . . while maintaining state control in traditional fields of state regulation.” 20 Bui v. Am. Telephone & Telegraph Co., 310 F.3d 1143, 1147 (9th Cir. 2002) (refusing to preempt 21 state medical malpractice claims). Under this legislative scheme, there are two types of ERISA 22 preemption: (1) complete preemption under ERISA § 502, see 29 U.S.C. § 1132(a); and (2) express 23 preemption under ERISA § 514(a), see 29 U.S.C. § 1144(a). Paulsen v. CNF Inc., 559 F.3d 1061, 24 1081 (9th Cir.2009). Both preemption provisions overcome state law claims for relief. See Fossen 25 v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102, 1108 (9th Cir. 2011). Only complete 26 preemption, however, also confers federal jurisdiction over state law claims. Id. at 1108 (citing 27 Marin General Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 946 (9th Cir. 2009)). 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 5 1. Complete Preemption 1 2 ERISA § 502(a) sets forth a detailed civil enforcement mechanism intended “to accomplish 3 Congress’ purpose of creating a comprehensive statute for the regulation of employee benefit 4 plans.” Davila, 542 U.S. at 207 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)); see 29 5 U.S.C. § 1132. Any plan participant or beneficiary must utilize this enforcement system in order to 6 recover benefits of their employee benefit plan, to enforce their rights under the plan, or to clarify 7 future benefits under the plan. Davila, 542 U.S. at 207; Dedeaux, 481 U.S. at 54 (explaining that 8 the remedies provided under ERISA are meant to be exclusive). Accordingly, any state law claim 9 “that duplicates, supplements, or supplants” this civil enforcement scheme is preempted as it conflicts with congressional intent to create a uniform regulatory regime. Id. at 209 (explaining that 11 For the Northern District of California United States District Court 10 the “pre-emptive force” of § 502 is so strong that it can transform a state claim into a federal claim 12 for the purpose of subject matter jurisdiction); see Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 13 1225 (9th Cir. 2005) (“A state cause of action that would fall within the scope of this scheme of 14 remedies is preempted as conflicting with the intended exclusivity of the ERISA remedial 15 scheme.”). 16 Under the Ninth’s Circuit’s two part test, a state law claim is superseded by § 502 if: (1) an 17 individual could have brought the same action under ERISA § 502(a)(1)(B); and (2) there exists no 18 other independent legal duty that is implicated by a defendant’s actions. Davila, 542 U.S. at 210; 19 Marin General Hosp., 581 F.3d at 946 (emphasizing that both prongs of the test must be satisfied 20 for preemption to apply). Here, the FAC is not preempted by § 502. Plaintiffs could not have 21 brought this action under § 502 because they do not seek to recover benefits, to enforce their rights, 22 or to clarify future opportunities under the plan. Rather, they simply assert state tort claims arising 23 from defendants’ alleged negligence in maintaining their drug formularies and in educating Kaiser 24 physicians. When considering these claims, there is, therefore, no need to construe the plan 25 language or determine the breadth of the plan’s terms. See Lingle v. Norge Div. of Magic Chef, Inc., 26 486 U.S. 399, 407 (1988) (explaining that the crucial question under complete preemption is 27 whether the claims require construction of the plan language); Roessert v. Health Net, 929 F. Supp. 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 6 1 343, 351 (N.D. Cal. 1996) (“[S]ince the disputed action does not require interpretation of the plan, 2 there is no reason to believe that state resolution of the disputed medical decision would affect the 3 important uniformity of federal ERISA law”). 4 Furthermore, defendants’ action, or inaction, does implicate an independent legal duty, 5 namely the duty to provide adequate medical treatment. Roessert, 929 F. Supp. at 351; see Bui, 6 (applying preemption only to claims which challenge denial of benefits). There is no basis, 7 therefore, to conclude that plaintiffs’ claims seek to duplicate or supplant ERISA’s civil 8 enforcement scheme so as to require preemption under § 502. 9 2. Express Preemption ERISA’s express preemption provisions are broader than § 502 and supersede all state 11 For the Northern District of California United States District Court 10 claims which “relate to any employee benefit plan.” 29 U.S.C. § 1144 (preempting all relevant state 12 “laws, decisions, rules, regulations, or other State action having the effect of law”). A common law 13 claim is deemed to be “related” to an ERISA plan “if it has a connection with or reference to such a 14 plan.” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 15 655-56 (1995) (refusing to construe broadly the phrase “relate to”); Providence Health Plan v. 16 McDowell, 385 F.3d 1168, 1172 (9th Cir. 2004) (emphasizing the importance of considering the 17 state claim’s actual relationship to the benefit plan). Under this “relates to” standard, the Ninth 18 Circuit has preempted four types of state laws: those which (1) govern the type of benefits provided 19 under ERISA plans, Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983); (2) “create reporting, 20 disclosure, funding or vesting” requirements for ERISA plans, Standard Oil Co. v. Agsalud, 633 21 F.2d 760 (9th Cir. 1980); (3) provide rules for calculating benefits offered under an ERISA plan, 22 Alessi v. Raybestos–Manhattan, Inc., 451 U.S. 504 (1981); or (4) regulate remedies for misconduct 23 related to the administration of an ERISA plan, Scott v. Gulf Oil Corp. 754 F.2d 1499 (9th Cir. 24 1985). See Cox v. Eichler, 765 F. Supp. 601, 605-06 (N.D. Cal. 1990). The guiding principle of 25 these categories is whether the “state law is ‘part of the administration of an employee benefit 26 plan,’” specifically the failure to pay enrollees earned benefits or the mismanagement of funds 27 related to these benefits. Matori Bros. Distribs. v. James-Massengale, 781 F.2d 1349, 1358-59 (9th 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 7 1 Cir. 1986); Roessert, 929 F. Supp. at 348 (“State law claims which arise either directly or indirectly 2 from the administration of the plan are preempted.”). To determine whether this principle applies, 3 courts must “look to the behavior underlying the allegations in the complaint.” Bui, 310 F.3d at 4 1147. 5 At base, the conduct underlying the FAC does not relate to ERISA plan administration. 6 Rather, the behavior is grounded soundly in allegations of negligence, fraud, and misrepresentation, 7 “traditional fields of state regulation.” Id. at 1148. Plaintiffs allege defendants were reckless in 8 their distribution of gabapentin and in their overall treatment of Borreani. Specifically, the FAC 9 maintains that the Kaiser Permanente Medical Group employed physicians who committed medical malpractice, the Kaiser Foundation Hospitals and pharmacies breached their duties of care and 11 For the Northern District of California United States District Court 10 disclosure, and the Kaiser Foundation Health Plan, acting as a provider of health care, not as an 12 insurer or administrator, contributed to the negligent medical decisions made in the course of 13 decedent’s treatment. According to the pleadings, defendants were thereby collectively responsible 14 for the improper medical decisions which ultimately caused Borreani’s death. These claims should, 15 therefore, not be preempted because they involve “medical decision[s] made in the course of 16 treatment . . . [not] administrative decision[s] made in the course of administering an ERISA plan.” 17 Id. at 1149. 18 The Ninth Circuit applied similar reasoning in Bui to overturn the district court’s decision to 19 preempt plaintiff’s claims based in traditional fields of state regulation. Id. In that case, plaintiff 20 brought suit on behalf of her deceased husband, Duong, against his employer, AT & T/ Lucent, and 21 against SOS, a company which contracted with AT & T/ Lucent to provide medical advice and 22 evacuation services. While working in Saudi Arabia, Duong required immediate surgery for two 23 myocardial infractions. Pursuant to defendants’ advice, he decided to stay in Saudi Arabia for the 24 procedure rather than be evacuated abroad to a hospital more experienced in treating his condition, 25 resulting in his death. His wife, thereafter, filed suit, alleging that both SOS and AT & T/ Lucent 26 negligently caused Duong’s death by providing misguided advice as to whether he should stay in 27 Saudi Arabia and by failing to inform Duong that it was possible for him to retrieve his passport in 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 8 1 order to travel abroad. Plaintiff also asserted breach of contract claims against AT & T/ Lucent. 2 The district court granted summary judgment to defendants stating that ERISA expressly preempted 3 all of plaintiff’s claims. 4 The Ninth Circuit reversed in part and affirmed in part, holding that the only claims 5 superseded by ERISA were the breach of contract claims and the claim against Lucent for negligent 6 retention of SOS as a service provider. The contract claims were preempted because they did “not 7 merely reference the ERISA plan” but also “require[d] its construction because the contract 8 allegedly breached is the ERISA plan itself.” Id. at 1151-52. The Court further preempted the 9 negligent retention claim because “the retention of providers is a necessary part of the administration of an ERISA plan.” Id. at 1152. The Court refused, however, to preempt the 11 For the Northern District of California United States District Court 10 remaining claims asserted against SOS for providing negligent advice, for failing to respond to 12 evacuation requests, and for refusing to evacuate Duong, or against Lucent for failing to inform 13 decedent of his passport availability and for providing negligent medical advice. In so refusing, the 14 Ninth Circuit explained that, the claims “do not mandate employee benefit structure or their 15 administration, do not preclude uniform administration, and do not provide alternative enforcement 16 mechanisms.” Id. at 1148. Rather, plaintiff was merely asserting traditional state law claims arising 17 from the negligent provision of medical care; this care merely happened to arise from an ERISA 18 plan. Id. at 1148 (emphasizing that preemption of medical malpractice claims would lead to 19 “absurd” results). It was irrelevant, therefore, that some of the claims required reference to this 20 plan, because the claims “at root” alleged “negligence in the provision of medical care.” Id. at 1150 21 (“Mere reference to an ERISA plan does not lead to preemption.”). The Court further explained that 22 these claims should not be preempted because unlike most preempted state claims which challenge 23 the denial of benefits, Duong received the benefit of medical advice, albeit in a negligent manner. 24 Id. at 1149. 25 Similarly here, plaintiffs do not contend that Borreani failed to receive promised benefits. 26 They concede he was treated and received the medical advice he was promised under his ERISA 27 plan. Rather, the FAC simply alleges the advice was negligent and deceptive. See id. at 1149 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 9 1 (upholding plaintiff’s claim because it was for the negligent provision of a benefit). This reasoning 2 applies to all named Kaiser entities because each was wearing “the hat of a [medical] service 3 provider” rather than that of an ERISA administrator in providing benefits related to the prescription 4 of gabapentin. See id. at 1153; Corporate Health Ins., v. Tex. Dept. of Ins., 215 F.3d 526, 534 (5th 5 Cir. 2000) (explaining that managed care providers are subject to state law claims for medical 6 malpractice when they are wearing “their hats as medical care providers”). 7 Defendants object to this classification, arguing they were acting not as medical providers, 8 but as ERISA administrators in managing their drug formularies. Invoking Saltzman v. 9 Independence Blue Cross, 634 F. Supp. 2d 538 (E.D. Pa. 2009), Kaiser contends that in that case, the district court determined an employee welfare benefit plan’s open formulary for listing 11 For the Northern District of California United States District Court 10 medications was an ERISA plan document. Kaiser reasons that its drug formulary should similarly 12 be deemed a plan document essential to the operation and administration of decedent’s plan. In 13 Saltzman, however, a case that did not reach the issue of § 514 preemption, the considered drug 14 formulary was quite distinct from the one at issue here. The Court determined that the formulary 15 was a plan document because it not only listed drugs, but also included the plan’s copayment 16 system. Without the formulary both insured and insurer “would be unaware of exactly how much 17 the insurer would pay for a prescription drug, and therefore how much the insured would be 18 required to copay.” Id. at 557. Additionally, the insurer would only cover drugs listed within the 19 formulary. Alternatively, here Kaiser will pay for off-formulary prescriptions and, therefore, the list 20 does not implicate benefits decisions. Kaiser’s decision to provide these formularies presumably 21 stems from its desire to provide medical care not from its need to regulate coverage or administer 22 benefits under the plan. Consequently, the claims related to defendants’ negligence in maintaining 23 and utilizing these formularies neither require plan interpretation, Providence Health Plan v. 24 McDowell, 385 F,3d 1168, 1172 (9th Cir. 2004), nor improperly “subvert the intent of Congress to 25 allow for the uniform administration of benefits,” Bui, 310 F.3d at 1148, and should not be 26 preempted under § 514. 27 3. Jurisdiction 28 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 10 Absent ERISA jurisdiction under 29 U.S.C. § 1132(e), there is no basis for federal 1 2 jurisdiction. Accordingly, this case is remanded to state court. See Villegas v. The Pep Boys Manny 3 Moe & Jack of Cal., 551 F. Supp. 2d 982, 985 (C.D. Cal. 2008) (“The Court must remand to state 4 court if it determines, as Machado urges, that ERISA preemption does not apply because it would 5 thereby lack subject matter jurisdiction.”); Patel v. Sugen, Inc., 354 F. Supp. 2d 1098, 1101 (N.D. 6 Cal. 2005) (“[T]his is not an ERISA case, and the court therefore lacks ERISA jurisdiction under 29 7 USC § 1132(e).”).2 8 V. CONCLUSION 10 Defendants’ motion to dismiss is denied. This matter is remanded to the Napa County 11 For the Northern District of California United States District Court 9 Superior Court for lack of federal subject matter jurisdiction. 12 13 14 IT IS SO ORDERED. 15 16 Dated: 6/22/12 RICHARD SEEBORG 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2 In light of the absence of federal jurisdiction over this action, the Court need not address defendants’ alternative arguments premised on the learned intermediary doctrine and the Medical Injury Compensation Reform Act with respect to the state law claims advanced in the FAC. ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 11
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