Opinion
FSTCV186038553S
08-06-2019
Morgan Chase Bank, National Association v. Gary Ryder et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Tierney, Kevin, J.T.R.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO DISMISS DATE STAMPED FEBRUARY 11, 2019 (#121.00) AS AMENDED BY MOTION TO DISMISS DATE STAMPED FEBRUARY 28, 2019 (#128.00)
Hon. Kevin Tierney Judge Trial Referee
The defendant, Gary Ryder, filed the instant Defendant’s Motion to Dismiss (#121.00) and amended that Motion to Dismiss (#128.00) in this residential foreclosure action involving the $2,450,000 loan secured by a mortgage on real property located at 345 Round Hill Road, Greenwich, Connecticut. The operative one-count complaint is dated October 2, 2018 and contains the usual allegations in residential foreclosure complaints. The initial Return of Service in the court file is dated October 4, 2018. (#100.30.) The court finds that Gary Ryder filed his self-represented appearance. That self-represented appearance form is dated February 6, 2019 and was date stamped by the Court Clerk on February 11, 2019. The court finds that the Defendant’s Motion to Dismiss (#121.00) and the amended Motion to Dismiss (#128.00) were both filed "within thirty days of the filing of an appearance" and therefore both Motions to Dismiss comply with the time requirements of Practice Book § 10-30(b).
Both the Defendant’s Motion to Dismiss (#121.00) and his amended Motion to Dismiss (#128.00) raise issues permitted by Practice Book § 10-30(a). The two issues raised in these two Motions to Dismiss filed by the self-represented defendant, Gary Ryder, are insufficiency of service of process on the defendant, Gary Ryder, based on his residency status and the invocation by Gary Ryder of the prior pending action-doctrine.
The court will first address the issue of insufficiency of service of process. The Summons in this court file names Gary Ryder as the "First Defendant" and states the following address for Gary Ryder: "c/o Secretary of State, 30 Trinity Street, Hartford, CT 06106 Address; 411 Seventh Avenue, Brooklyn, N.Y. 11215." The plaintiff alleges that Gary Ryder is an individual defendant who was not a resident of the State of Connecticut as of the commencement of this litigation. The plaintiff was required to serve Gary Ryder consistent with Gen. Stat. § 52-59b(c)
Any nonresident individual, ... over whom a court may exercise personal jurisdiction ... shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ... may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, ... personally. The process shall be served by the officer to whom the same is directed upon Secretary of the State by leaving with or at the office of the Secretary of State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State.Gen. Stat. § 52-59b(c).
Under Gen. Stat. § 52-59b(c) the plaintiff, JP Morgan Chase Bank, N.A., has the burden to prove that service on the nonresident defendant has been made properly, that the address is proper and that the service was made on the nonresident defendant as of the date in question. Cogswell v. American Transit Insurance Company, 282 Conn. 505, 514-15 (2007); Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, fn.9 (1996). "This court has recognized that the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used." Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 (1983).
The initial Return of Service dated October 4, 2018 is on file with the court clerk as pleading #100.30. According to that Return of Service all of the relevant foreclosure documents were served by a state marshal "at the office of Denise Merrill, Secretary of State, located at 30 Trinity Street, Hartford, CT 06106, Statutory Agent for Service and duly authorized to accept service on behalf of the within named Defendant, and paid statutory fees in the amount of $50.00 Gary Ryder." That initial Return of Service also states: "And afterwards, on the 4th of October 2018, a true and attested verified copy of the within original ... with an endorsement thereon of service upon the Connecticut Secretary of State, was deposited in the U.S. Mail, Wethersfield, Certified Mail number 7018 0680 0000 8572 4790 and Return Receipt Requested, addressed to the within named Defendant Gary Ryder 411 Seventh Avenue, Brooklyn, N.Y. 11215." At the hearing held on the Motions to Dismiss there was no issue concerning the accuracy of the information contained in the Return of Service nor was the serving Connecticut State Marshal, John T. Fiorillo, called to testify. "In any event, an officer’s return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise." Cugno v. Kadin, 138 Conn. 341, 343 (1951).
This court finds that the facts contained within the October 4, 2018 Return of Service comply with Gen. Stat. § 52-59b(c) for service on Gary Ryder, if in fact Gary Ryder was a nonresident of the State of Connecticut at that time.
The remaining issue is the out of Connecticut residence status of Gary Ryder during the month of October 2018. At the hearing on the Motions to Dismiss ten exhibits were offered as well as the testimony of Gary Ryder. The aforesaid October 4, 2018 Return of Service was marked as Exhibit 4. Mr. Ryder testified that the Brooklyn, New York address was not his current address and that his current address is as stated in the February 2019 appearance in this file; Clam Island, Branford, Connecticut. Mr. Ryder did admit that he was a resident of 411 Seventh Avenue, Brooklyn, New York in 2018 but that he moved from that Brooklyn address in October 2018 never to return to Brooklyn.
There was prior litigation between the parties entitled JP Morgan Chase Bank, N.A. v. Gary Ryder et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV18-5020234 S. In the appearance section of the Edison file for that prior litigation kept by the court clerk’s office is a Limited Appearance form JD CL-121 Rev. 2-16 for this docket number FST CV18-5020234 S litigation. It was filed by Gary Ryder. It contains the signature of Gary Ryder and is dated October 17, 2018. The address used by Gary Ryder in that signed Limited Appearance form in that other litigation is "411 Seventh Avenue, Brooklyn, N.Y. 11215." Exhibit 9 is a pleading also in that prior litigation file dated October 17, 2018 stamped by the Superior Court Clerk on October 19, 2018 containing the same Brooklyn address for Gary Ryder in the signature page. (#110.00, page 16 of 28 pages; Ex. 9, page numbered 16.)
In the file before this court is a pleading filed by Gary Ryder date stamped by the Superior Court Clerk on December 3, 2018. It is sixteen pages in length. That pleading is entitled Defendant’s Motion to Vacate Default Motion and was signed by Gary Ryder using the Clam Island, Branford, CT 06405 address. (#107.00.) Attached to that December 3, 2018 pleading filed and signed by Mr. Ryder was an additional copy of the Limited Appearance in docket number FST CV18-5020234 S in which Mr. Ryder used the 411 Seventh Avenue, Brooklyn, N.Y. address as of October 17, 2018. (#107.00, 7th page of the 16-page pleading.) This same pleading #107.00 was marked as an exhibit before this court. Ex. 10. Also attached as one of those sixteen pages is another Limited Appearance form signed by Gary Ryder in this current docket number FST CV18-6038553 S dated October 19, 2018 which uses the address of 411 Seventh Avenue, Brooklyn, N.Y. 11215. (#107.00, 10th page of the 16-page pleading, see also Ex. 10.) In addition in the current file Gary Ryder prepared a pleading under a date of October 19, 2018. (#115.00, 13th page of 16-page pleading.) He utilized both docket numbers and labeled that pleading "Defendant’s Change of Address Notification." That Notification stated: "The Clerk of the Court is now on notice that this Defendant has changed address effective October 19, 2018. The correct address for the two civil cases captioned above must be modified within the Court’s docket entry system. Kindly make necessary change to the docket." That pleading was signed by Gary Ryder using his Clam Island, Branford, Connecticut 06405 address. (#115.00, see 13th and 14th pages thereof.)
There was also evidence before this court that in a deposition taken in the 2013 litigation pending in the Federal Court, Gary Ryder verified that his residence in that April 19, 2016 deposition was 411 Seventh Avenue, Brooklyn, New York. (Ex. 6, marked as "Exhibit E" at page 3, and in an October 31, 2018 Memorandum of Decision in FST CV18-5020234 S, pleading #113.00, page 2.)
From the above documents the court finds that the service was made by the state marshal utilizing the certified mail process authorized by Gen. Stat. § 52-59b on Gary Ryder, a nonresident defendant. The court finds that the Certified Mail number was 7018 0680 0000 8572 4790. That number was found within the initial Return of Service in the court file and marked Exhibit 4 at the hearing on the Motion to Dismiss. A four-page United States Post Office (USPS) tracking document was marked as Exhibit 5, which contained the same twenty-digit number. The only difference is that in Exhibit 5 there was no space between every four digits but otherwise the number is identical. A photocopy of the envelope sent by the serving Connecticut marshal contains the same tracking number was marked as Exhibit 7. A portion of the tracking numbers in Exhibit 7 were incomplete due to the photocopying and bar code process but the last thirteen digits are identical. A partial number can be read as the digit 8, which means that last fourteen digits are the same. The court finds that Exhibit 7 envelope contains the same twenty-digit tracking number. The envelope is addressed to "Gary Ryder 411 Seventh Avenue, Brooklyn, N.Y. 11215."
Although there is no evidence that Gary Ryder signed for the Return Receipt portion of the Certified Mail, Gen. Stat. § 52-59b does not require actual delivery, but the mere placing of the documents in the mail. Aurora Loan Services, LLC v. Condron, 181 Conn.App. 248, 264 (2018). Connecticut relies on the mailbox rule and the presumption of delivery arises when the document is placed in the mail system. Under the presumption of delivery rule of Connecticut, proof of delivery and the signing of the return receipt is not a requirement in order to satisfy notice under Connecticut law. Echavarria v. National Grange Mutual Insurance Company, 275 Conn. 408, 418 (2005). "A properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received." Id., 418; Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 211-12 (2002). Court cases have held that a defendant offering no evidence to support his allegation that he did not receive a copy of the complaint except his own testimony that he was having trouble getting mail delivered, the absence of the copy of a signed certified mail receipt in the record has been held insufficient to overcome the presumption of timely notice. Id., 212.
The court finds that this lawsuit commenced on October 4, 2018 with actual service upon the Connecticut Secretary of State in accordance with Gen. Stat. § 52-59b(c). The court finds that there was no evidence provided to this court that Gary Ryder did not reside at 411 Seventh Avenue, Brooklyn, New York prior to October 17, 2019. The court finds that as of October 4, 2018 Gary Ryder was an individual nonresident of Connecticut with a residence address of 411 Seventh Avenue, Brooklyn, New York. The court finds that that address was furnished in the Return of Service and furnished to the Connecticut Secretary of State. The service at that Brooklyn address was made by mail with the proper tracking information furnished to the court. Although the return receipt was not signed for by Gary Ryder or any of his representatives, the plaintiff by serving the Secretary of State utilizing the proper address for Gary Ryder as of October 4, 2018 complied with Gen. Stat. § 52-59b(c).
The court denies the two Motions to Dismiss (#121.00 and #128.00) addressing the issue of insufficiency of service of process.
The defendant, Gary Ryder, claims that this instant foreclosure case must be dismissed under the prior pending action doctrine. A Motion to Dismiss is the procedure authorized for asserting the prior pending action doctrine. Macalla v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket Number CV17-6073273 S (December 31, 2018, Abrams, J.) . "Although a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction." Gaudio v. Gaudio, 23 Conn.App. 287, 294 (1990); Halpern v. Board of Education, 196 Conn. 647, 652, fn. 4 (1985).
"The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction." Bayer v. Showmotion, Inc., 292 Conn. 381, 395-96 (2009).
To determine whether the doctrine applies; "... the trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application. In order to determine whether the actions are virtually alike, we must examine the pleadings ... to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties ... If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion. In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated. Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." Bayer v. Showmotion, Inc., supra, 292 Conn. 397-98. The prior pending action doctrine calls for the examination of litigation that is pending between the parties. When the other action is no longer pending, the prior pending action doctrine is not applicable. 710 Long Ridge Operating Co. II, LLC v. Stebbins, 153 Conn.App. 288, 293, fn.7 (2014).
The defendant, Gary Ryder, argued that there were two other foreclosure actions commenced by JP Morgan Chase Bank, National Association against Gary Ryder to enforce this $2,450,000 mortgage loan on the real property at 345 Round Hill Road, Greenwich, Connecticut.
The first litigation matter brought to the court’s attention under the prior pending action doctrine is the aforesaid state court litigation. JP Morgan Chase Bank, N.A. v. Gary Ryder et al., FST CV18-5020234 S. The court has reviewed that file and takes judicial notice of the entire pleadings in that file. It is a prejudgment application seeking an attachment as against Gary Ryder alone. That litigation commenced by an August 15, 2018 Application for Prejudgment Remedy in accordance with Gen. Stat. § 52-278c et seq. A proposed unsigned writ, summons and complaint was filed as a pleading (#100.32). Neither the complaint nor the summons were signed. The unsigned complaint alleges the very same mortgage that is the subject of this foreclosure litigation. It appears to name as party defendants other individuals and entities that may have a claim against the real property. This court finds that the allegations of this unsigned complaint are virtually identical to the complaint before this court. The court, after examining the file, cannot find a signed complaint in the file nor a Return of Service for a signed writ, summons and complaint. The defendant, Gary Ryder, filed a timely Motion to Dismiss in that prejudgment remedy matter Docket Number FST CV18-5020234 S on September 12, 2018. (#106.00.) He filed another Motion to Dismiss in that same prejudgment remedy matter on September 26, 2018 (#108.00). Both motions addressed insufficiency of service on a nonresident defendant. In the unsigned summons attached as pleading #100.32 the plaintiff, JP Morgan Chase Bank, N.A., identified Gary Ryder as a nonresident individual defendant and noted the following address for service: "c/o Secretary of State, 30 Trinity Street, Hartford, CT 06106 Address; 670 Montauk High Box 29 Water Mill, N.Y. 11976." The Return of Service in the court file for the prejudgment remedy matter noticed the mail portion addressed to "Gary Ryder, 670 Montauk High Box 29, Water Mill, N.Y. 11976" (#101.00).
The two aforesaid Motions to Dismiss (#106.00 and #108.00) test whether or not Gary Ryder had a nonresidence address in Water Mill, New York. A duly noticed evidentiary hearing on both Motions to Dismiss was held. On October 31, 2018 the court granted the two Motions to Dismiss for the plaintiff’s failure to comply with the statutory requirements of service of process on a nonresident individual. (#106.01, #108.01.) A four-page October 31, 2018 Memorandum of Decision executed by the hearing judge is in the above prejudgment remedy file. (#113.00.)
No evidence was brought to this court’s attention that that this prejudgment remedy case has been reestablished after October 31, 2018 by any order of the court or any other legal procedure. The court finds that the Docket Number FST CV18-5020234 S is no longer pending and was not pending after October 31, 2018 (#113.00).
It is well settled that filing an application for prejudgment remedy does not commence a civil action. Gen. Stat. § 52-45a: Howard v. Robertson, 27 Conn.App. 621, 626 (1992). "... the prejudgment remedy documents are not the equivalent of the writ necessary pursuant to General Statutes § 52-45a, and do not satisfy the requirements of General Statutes § 52-582. Further, the language of General Statutes § 52-278c(b) that the plaintiff is about to commence an action plainly indicates that the application for prejudgment remedy, together with the documents that accompany it do not commence an action." Id., 626; Raynor v. Hickock Realty Corporation, 61 Conn.App. 234, 239-40 (2000).
The court finds that the prejudgment litigation mentioned above cannot be considered a prior pending action for dismissal under the prior pending action doctrine.
Gary Ryder filed federal litigation against JP Morgan Chase Bank, N.A. concerning this very mortgage on December 30, 2013 in the Federal District Court, District of Connecticut where it was pending as Docket Number 3:13-cv-01929-AVC. According to information obtained at the Motions to Dismiss hearing, that federal court matter was terminated on February 28, 2018. Gary Ryder judicially admitted that fact in a February 15, 2019 complaint: "That matter was administratively closed in February 18, 2018." Ex. 3, Count One, paragraph 2; Gary Ryder v. JP Morgan Chase Bank, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV19-6040188 S; complaint dated February 15, 2019, Count One, paragraph 2. The defendant in that 2013 federal litigation, JP Morgan Chase Bank, N.A., filed a counterclaim seeking to foreclosure this very $2,450,000 mortgage on 345 Round Hill Road, Greenwich, Connecticut. Neither party furnished this court with the copies of the pleadings in that 2013 federal litigation. This court does not have access to the PACER system in order to obtain its own copies of those pleadings. Based upon the admission of counsel for the defendant, JP Morgan Chase Bank, N.A., at the hearing on the Motions to Dismiss, the court finds that the foreclosure counterclaim of JP Morgan Chase Bank, N.A. in that 2013 litigation would qualify as a prior pending action as being an identical cause of action with the same parties seeking the same relief in the State of Connecticut applying the same Connecticut foreclosure laws. Otero v. Housing Authority of the City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV99-0366854 S (April 27, 2000, Skolnick, J.) ; Jumpp v. Corvino, Superior Court, judicial district of New Haven at New Haven, Docket Number CV16-5036748 S (October 4, 2016, Wilson, J.) .
After the February 28, 2018 termination of Gary Ryder’s claims in that 2013 federal District Court litigation, 3:13-CV-01929-AVC, the District Court dealt with the foreclosure counterclaim filed by JP Morgan Chase Bank, N.A. in that federal litigation as follows: March 14, 2018 order: "Case remanded to State Court Judicial District of Stamford-Norwalk at Stamford" and in a March 15, 2018 order: "ORDER. In lieu of remanding to state court, the court orders the defendant to file any further proceedings with respect to the issue of foreclosure in this case in state court. Signed by Judge Alfred V. Covello on March 15, 2018." Ex. 1. No later proceedings in the federal court system relating to a foreclosure remedy have been brought to the attention of this court.
Since this 2013 federal litigation is no longer pending in the United States District Court and has not been pending since February 28, 2018, well before the commencement of this current litigation, the court cannot consider that foreclosing counterclaim a prior pending action. The Superior Court has the power to stay a state court action while an identical federal court action is pending, including when the federal action was under appeal in the federal Court of Appeals. Foresta v. Centerlight Capital Management, LLC, Superior Court, judicial district of Stamford/Norwalk at Norwalk, Docket Number FST CV09-5012524 S (March 18, 2010, Brazzel-Massaro, J.); Berube v. Great Atlantic & Pacific Tea Co., Inc., Superior Court, judicial district of Hartford at Hartford, Docket Number X07 HHD CV08-4036357 S (October 3, 2008, Berger, J.) . No such application for stay has been presented to this court. The evidence before this court supports this court’s finding that the 2013 JP Morgan Chase Bank, N.A. foreclosure counterclaim is no longer pending in the Federal District Court nor is it on active appeal in the Second Circuit Court of Appeals.
Gary Ryder claims that a number of other federal litigation matters were and are pending before the courts and that this 2013 matter is still in litigation before the United States Court of Appeals for the Second Circuit. The court finds that the Court of Appeals for the Second Circuit litigation was filed by Gary Ryder on March 22, 2018 in response to the February 28, 2018 termination of the aforesaid 2013 federal litigation. That matter was assigned Docket Number 0:18-cv-00786 (a/k/a 18-786) by the Clerk of the Court of Appeals for the Second Circuit. The court obtained information through the PACER Monitor System that this Second Circuit Court of Appeals action terminated on April 9, 2019 (6-page Summary Order by the Judge of the United States Court of Appeals for the Second Circuit, 18-786 dated April 9, 2019). Neither party furnished copies to this court of any of the pleadings before the Court of Appeals for the Second Circuit.
There were three other items of federal litigation as follows: (1) Filed on November 17, 2014 as federal litigation Docket Number 1:14-cv-09144-KBF. This litigation was terminated on February 19, 2015; (2) Filed on March 17, 2015 was litigation 0:15-cv-00811. This court assumes this was an appeal from the termination of the aforesaid 2014 federal action, since PACER monitor reports this docket number 0:15-cv-00811 as a Related Case to docket number 1:14-cv-09144-KBF. Since no initials are attached to that 2015 docket number, the court does not believe this case is pending in any Federal District Court but was pending as an appellate matter testing the February 19, 2015 termination; (3) The final item of federal litigation was filed on February 26, 2015, seven days after the termination of the 2014 action. It was filed as Docket Number 3:2015-cv-00293-AWT. Although that matter was not furnished to this court in documentary form and the court had no access to obtain its own copy of it through the PACER system, this court is aware that AWT stands for Judge Alvin W. Thompson who is a trial judge in the Federal District Court, District of Connecticut. The defendant, Gary Ryder, provided no evidence that this Judge Thompson litigation is currently pending, what is the nature of the action, what are the claims for relief, does it seek a foreclosure of this $2,450,000 mortgage, nor the identity of the parties.
This court finds that the above six Federal District Court matters are not pending. The counterclaim seeking foreclosure filed by JP Morgan Chase Bank, N.A. in the 2013 federal action was terminated by action of the court on February 28, 2018. There is no credible evidence that JP Morgan Chase Bank, N.A. elected to continue that foreclosure litigation in the federal court system after Gary Ryder’s litigation was terminated by the Federal District Court. The court has taken judicial notice of those federal court cases in accordance with Connecticut case law. Scalora v. Scalora, 189 Conn.App. 703, 714 (2019); Ferraro v. Ferraro, 168 Conn.App. 723, 732 (2016); Conn. Code of Evidence, § 2.2(b).
The prior pending action doctrine has been part of Connecticut jurisdiction for generations. It formerly could be raised only by a plea in abatement. The plea in abatement was changed and replaced by a motion to dismiss in the 1963 version of the Connecticut Practice Book, PB § 93 (1963); Halpern v. Board of Education, 196 Conn. 647, 652, fn.4 (1985). "A motion to dismiss is the proper vehicle to raise the issue of a prior pending action, although the doctrine does not truly implicate subject matter jurisdiction." Bayer v. Showmotion, Inc., supra, 292 Conn. 403; Kleinman v. Chapnick, 140 Conn.App. 500, 503, fn.5 (2013); Conti v. Murphy, 23 Conn.App. 174, 178 (1990); Luongo Construction and Development, LLC v. MacFarlane, 176 Conn.App. 272, 284, cert. denied, 327 Conn. 988 (2017). A pending appeal is not a prior pending action within the meaning of the prior pending action doctrine. Chomko v. Patmon, 20 Conn.App. 159, 161 (1989); 710 Longridge Operating Co. II, LLC v. Stebbins, 153 Conn.App. 288, 293, fn.7 (2014).
For that portion of the two Motions to Dismiss (#121.00 and #128.00) that raised the issue of prior pending action, those motions are denied. Salem Park, Inc. v. Salem, 149 Conn. 141 (1961).
The court hereby denies the Defendant’s Motion to Dismiss date stamped February 11, 2019 (#121.00).
The court hereby denies the defendant’s Motion to Dismiss date stamped February 28, 2019 (#128.00).