Nc Bioremediation, LLC v. Sea Winds, LLC

NC Bioremediation, LLC v. Sea Winds, LLC, 2015 NCBC 94.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DARE 15 CVS 107

NC BIOREMEDIATION, LLC, )
Plaintiff, )
)
v. )
)
SEA WINDS, LLC; SEA WINDS 2, LLC; ) ORDER ON MOTION FOR
SEA WINDS 3, LLC; SEA WINDS 4, LLC; ) RULE 11 SANCTIONS
SEA WINDS 5, LLC; SEA WINDS 6, LLC; )
SEA WINDS 7, LLC; SEA WINDS 8, LLC; )
RANDY M. SAUNDERS; FREDERICK D. )
SUTER; RACHEL N. POWELL, and )
MARGRET P. BLAKELY, )
Defendants. )

THIS MATTER comes before the Court on Defendants Sea Winds, LLC; Sea Winds 2,

LLC; Sea Winds 3, LLC; Sea Winds 4, LLC; Sea Winds 5, LLC; Sea Winds 6, LLC; Sea Winds

7, LLC; Sea Winds 8, LLC; Randy M. Saunders; Frederick D. Suter; Rachel N. Powell; and

Margret P. Blakely's ("Defendants") Motion for Rule 11 Sanctions ("Motion for Sanctions").

On August 7, 2015, the Court held a hearing on the Motion for Sanctions.

THE COURT, having considered the Motion for Sanctions, briefs in support of and

opposition to the Motion for Sanctions, the arguments of counsel, and other appropriate

matters of record, FINDS and CONCLUDES, solely for the purpose of deciding the Motion

for Sanctions, as follows.

PROCEDURAL BACKGROUND

1. On February 25, 2015, Plaintiff filed its Complaint in this matter on behalf of

NC Bioremediation, LLC "by and through its Member-Manager John A. Mauney."1 The

Complaint asserts claims for Accounting of Profits, Civil Conspiracy, Money Owed, Breach of

Fiduciary Duty, Conversion, Constructive Fraud, and Unfair and Deceptive Trade Practices

1 Compl., introductory paragraph.
in violation of N.C. Gen. Stat. § 75-1.1 (hereinafter, references to the General Statutes will

be to "G.S."). The Complaint was signed by attorneys Brice M. Bratcher ("Bratcher") and J.

Denton Adams ("Adams"), and is verified by John A. Mauney ("Mauney") as "corporate

manager of NC Bioremediation, LLC."

2. In the Complaint, Plaintiff alleges that it entered into a business relationship

with Defendants Randy M. Saunders ("Saunders"), Frederick D. Suter ("Suter"), Rachel N.

Powell ("Powell"), and Margret P. Blakely ("Blakely") (collectively, "Individual Defendants")

to purchase a hotel and timeshare in Dare County, North Carolina. This business venture

was incorporated as Sea Winds, LLC ("Sea Winds"), with Plaintiff, Saunders, Suter, Powell

and Blakely each holding membership interests in the LLC. In the course of its operation,

Sea Winds acquired title to additional lots in Dare County. These lots were transferred to the

numbered Sea Winds entities named in this action.2 Plaintiff alleges that a number of these

properties were sold and that Sea Winds received proceeds in excess of $7,000,000.00 from

these sales. Sea Winds has made distributions to Saunders, Suter, Powell, and Blakely, on

account of their membership interest in Sea Winds, but has made no distribution to Plaintiff.

In this action, Plaintiff seeks to recover the distributions it contends were improperly

withheld by Sea Winds and additional damages arising out of the conduct of Defendants.

3. On June 10, 2015, Defendants filed the Motion for Sanctions pursuant to Rule

11 of the North Carolina Rules of Civil Procedure ("Rule(s)"). In the Motion for Sanctions,

Defendants contend that:

John A. Mauney, by representing himself to be corporate manager and a
member of Plaintiff NC Bio, is engaging in a fraud upon the Court, and by
seeking monetary compensation to which he is not entitled, is the true party-
in-interest as to this Complaint and is aware that the allegations contained
therein are not well grounded in fact, that claims are not warranted by law,
and has engaged counsel to file the complaint herein for the improper purpose

2 The Complaint does not allege whether each of the members of Sea Winds were also members of the

numbered Sea Winds entities.
of harassing the Defendants and subjecting them to the costs of litigation in an
effort to obtain funds to which he has no rightful claim.3

Defendants also contend that Bratcher and Adams "should be sanctioned . . . for failing to

take the minimal steps necessary to confirm the factual representations of John A. Mauney

before signing off on the complaint after receiving actual notice that those representations

were false."4 Defendants seek dismissal of the lawsuit and an order requiring Mauney and

Plaintiff's counsel, Bratcher and Adams, to pay Defendants' reasonable attorneys' fees.

FACTS

4. In support of and opposition to the Motion for Sanctions, the parties have

submitted a number of affidavits and other evidence. The record evidence tends to show the

following facts.5

5. Mauney alleges that in March of 2001, he and James L. Overton ("Overton")

"agreed to form NC Bioremediation."6 NC Bioremediation, LLC's Articles of Incorporation

were filed with the North Carolina Secretary of State ("Secretary of State") on March 19,

2001, and were signed by Mauney as "Organizer."7 Several annual reports filed on behalf of

NC Bioremediation, LLC from 2002 through 2009 list Mauney as the registered agent for the

LLC, but list Overton as the sole member and manager.8 None of the reports filed with the

Secretary of State prior to early 2015 list Mauney as a member of NC Bioremediation, LLC.

6. Mauney was a licensed North Carolina attorney at the time that NC

Bioremediation was formed. 9 Mauney claims that "Overton was identified as the member of

3 Mot. Sanctions ¶ 10.
4 Id. ¶ 22.
5 The Court recites these facts for purposes of this Motion for Sanctions only.
6 Mauney Aff. ¶ 3.
7 Mot. Sanctions Ex. 5.
8 Id. Ex. 6.
9 On July 15, 2013, Mauney was disbarred by the North Carolina State Bar for a number of violations

of the Rules of Professional Conduct. In the Order of Discipline, the Disciplinary Hearing Commission
NC Bioremediation, LLC because I was acting as the attorney for the Sea Winds entities in

a transactional nature."10 Mauney apparently wished to sidestep his ethical obligations under

the Rules of Professional Conduct by representing the Sea Winds members while holding an

undisclosed financial interest in NC Bioremediation.11 Nevertheless, Mauney alleges that

he "held an option to exercise [an] ownership interest in NC Bioremediation."12 Mauney

contends that he exercised the option to acquire an ownership interest in NC Bioremediation

"in writing to Mr. Overton in 2008."13 Plaintiff's counsel admit that they do not have a copy

of the alleged written exercise of this option, or any other documentary evidence stating that

Mauney in fact owns a membership interest in NC Bioremediation. On February 28, 2013,

Plaintiff was administratively dissolved by the Secretary of State for failing to file annual

reports.

7. On August 28, 2014, Bratcher sent a letter to Saunders stating that Bratcher

had "been retained by NC Bioremediation" regarding the payments due to Plaintiff by Sea

Winds for the sales of various properties.14 Defendants contend that Saunders replied to

Bratcher's letter and advised him, inter alia, that it there was no proof Mauney had a

membership interest in NC Bioremediation, that as an alleged 50% owner Mauney would not

have authority to file a lawsuit on Plaintiff's behalf, that Overton had stated in emails that

Mauney was not a 50% owner of NC Bioremediation, and that Mauney had acted as the

found that Mauney, on multiple occasions, "made demonstrably false statements under oath" at a
deposition. North Carolina State bar v. Mauney, 12 DHC 36 (Jul. 15, 2013).
10 Mauney Aff. ¶ 5.
11 Pl's Br. Opp. Mot. Sanctions 2; North Carolina Revised Rules of Professional Conduct 1.7 and 1.8.

RPC 1.8(a) prohibits an attorney from entering into a business transaction with a client or acquiring
an "ownership, possessory, security or other pecuniary interest directly adverse to a client" unless the
transaction are fair and reasonable, are fully disclosed to the client, the client has opportunity seek
independent legal counsel, and the client provides informed consent.
12 Mauney Aff. ¶ 6.
13 Id.
14 Mot. Sanctions Ex. 2.
attorney for Sea Winds.15 Bratcher, however, denies that he received Saunders' reply, and

alleges that it was first provided to him at a hearing held before this Court on May 7, 2015.16

Nevertheless, Bratcher admits that he spoke with Saunders by telephone on September 9,

2014, and that Saunders told him "that Mr. Overton had stated that Mauney was not an

owner of NC Bioremediation."17 In addition, both parties have submitted emails exchanged

between Mauney, Overton, and Saunders from April and May of 2011, in which Overton

states that Mauney never had a membership interest in NC Bioremediation.18 In addition,

Plaintiff has filed several financial statements allegedly prepared by Overton and delivered

to Mauney in 2006 and 2007 that Plaintiff claims show Mauney shared some type of

ownership interest with Overton in Sea Winds.19

8. In November 2014, Mauney purported to call a meeting of the members of NC

Bioremediation.20 Notice of the meeting was sent by first class and certified mail to Overton

at an address in North Carolina, but the certified notice was returned unclaimed. Overton

did not attend this meeting. On November 24, 2014, Mauney held the membership meeting

and removed Overton as manager of NC Bioremediation and appointed himself manager.21

On January 30, 2015, an application for reinstatement was filed with the North Carolina

Department of the Secretary of State. This document listed Mauney as manager of NC

Bioremediation. Until January 30, 2015, no annual report or other record on file with the

North Carolina Secretary of State listed Mauney as a manager or member of Plaintiff.22

15 Id. Ex. 3.
16 Bratcher Aff. ¶ 9.
17 Id. ¶ 10.
18 Pl's Br. Opp. Mot. Sanctions, Ex. I; Mot. Sanctions Ex. 4.
19 Pl's Br. Opp. Mot. Sanctions, Exs. A and C.
20 At this time, Bratcher was representing NC Bioremediation, LLC and facilitated the November 2014

meeting. See Bratcher Aff. ¶¶ 15-17.
21 See Br. Opp. Mot. Sanctions Ex. L.
22 See id. The report filed January 30, 2015, also lists Bratcher as Registered Agent of Plaintiff.
9. On February 25, 2015, Bratcher and Adams filed the Complaint containing

their signatures. The Complaint was verified by Mauney.

10. On May 7, 2015, Overton filed a sworn affidavit with the North Carolina

Secretary of State contesting the validity of Mauney's reinstatement of NC Bioremediation.

In the affidavit, Overton states that "John A. Mauney is not a member or manager of NC

Bioremediation, LLC and was not authorized by any member or manager of NC

Bioremediation, LLC to reinstate the LLC."23 On June 3, 2015, Overton filed with the

Secretary of State corrections to the Application for Reinstatement filed by Mauney, a new

Application for Reinstatement signed by Overton, and two annual reports.

11. On August 27, 2015, over two weeks after the hearing on the Motion for

Sanctions, Plaintiff's counsel submitted an affidavit they obtained from Overton ("Overton

Affidavit").24 The Overton Affidavit contradicts Mauney's affidavit filed by Plaintiff's counsel

on June 29, 2015. In the Overton Affidavit, Overton states that "[a]t the time of the creation

of NC Bioremediation, I was the sole member and manager of NC Bioremediation" and that

"I remain the manager of NC Bioremediation."25 In addition, Overton "dispute[s] that Mr.

Mauney ever exercised an option or had authority to act on behalf of NC Bioremediation"26

and that Mauney lacked authority to hire Plaintiff's counsel, reinstate NC Bioremediation,

LLC, or file this lawsuit.27 Nevertheless, Overton, as manager of Plaintiff, claims to

retroactively ratify the actions of Mauney.28

23 Mot. Sanctions Ex. 7.
24 This affidavit is dated and notarized as of August 26, 2015.
25 Overton Aff. (Aug. 26, 2015) ¶ 3.
26 Id. ¶ 4.
27 Id. at ¶ 5.
28 Id. Additionally, for good measure, Overton "unequivocally den[ied] any allegations that [he]

embezzled money from Sea Winds, LLC or any defendants in this action." Id. at ¶ 10. As both parties
recognize, Overton has been accused of embezzling approximately $500,000.00 from Sea Winds. See
Pl.'s Br. Opp. Mot. Sanctions 1-2; Defs.' Ans. (asserting, as their first affirmative defense, an
ANALYSIS

12. Rule 11 requires that an attorney and/or party sign every "pleading, motion,

and other paper" and that:

The signature of an attorney or party constitutes a certificate by him that he
has read the pleading, motion, or other paper; that to the best of his knowledge,
information, and belief formed after reasonable inquiry it is well grounded in
fact and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and that it is not interposed
for any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. If a pleading, motion, or other paper
is not signed, it shall be stricken unless it is signed promptly after the omission
is called to the attention of the pleader or movant. If a pleading, motion, or
other paper is signed in violation of this rule, the court, upon motion or upon
its own initiative, shall impose upon the person who signed it, a represented
party, or both, an appropriate sanction, which may include an order to pay to
the other party or parties the amount of the reasonable expenses incurred
because of the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.

G.S. § 1A-1, Rule 11.

13. "There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal

sufficiency, and (3) improper purpose." Peters v. Pennington, 210 N.C. App. 1, 27 (2011)

(internal citations omitted). Defendants contend that Plaintiff's counsel violated all three

mandates of Rule 11. When the factual sufficiency of a pleading or paper is challenged, "a

court must determine (1) whether the plaintiff undertook a reasonable inquiry into the facts

and (2) whether the plaintiff, after reviewing the results of his inquiry, reasonably believed

that his position was well grounded in fact." Id. (internal citations omitted). A two-prong

analysis is also used to determine whether a complaint is well-grounded in law. "This

approach looks first to the facial plausibility of the pleading and only then, if the pleading is

implausible under existing law, to the issue of 'whether to the best of the signer's knowledge,

information, and belief formed after reasonable inquiry, the complaint was warranted by

entitlement to offset any potential amounts owed to Plaintiff by "those funds embezzled from Sea
Winds, LLC by Overton").
existing law.' "Polygenex Int'l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 249 (1999). Finally, in

determining whether a complaint was filed for an improper purpose, the Court employs an

objective standard and the movant bears the burden to prove an improper purpose. Coventry

Woods Neighborhood Ass'n v. City of Charlotte, 213 N.C. App. 236, 241 (2011). An improper

purpose is "any purpose other than one to vindicate rights . . . or to put claims of right to a

proper test." Id. (internal citations omitted). The Court looks to the totality of the

circumstances to determine whether an improper purpose "may be inferred from the alleged

offender's objective behavior." Id.

14. As a preliminary matter, the filing of the Overton Affidavit and the purported

ratification of Mauney's actions do not prevent the Court from addressing the Motion for

Sanctions, nor do they cure any potential violation of Rule 11 associated with filing the

Complaint. As North Carolina courts have long recognized, a party cannot avoid a Rule 11

inquiry by dismissing the claims or pleading at issue. See, e.g., Bryson v. Sullivan, 330 N.C.

644, 653 (1992) (recognizing that the trial court is not deprived of jurisdiction to consider a

motion for sanctions by the filing of a voluntary dismissal). Similarly, any subsequent

attempt to save Plaintiff's Complaint, or cure deficiencies in counsel's investigation of the

Complaint, should not deprive this Court of the authority and responsibility to address

potential Rule 11 violations. To hold otherwise would remove all incentive for a litigant "to

'stop, think, and investigate more carefully before serving and filing papers.'" Id. (internal

citations omitted).

15. Here, Defendants do not challenge (for purposes of this motion) the factual

allegations in the Complaint regarding the formation of the Sea Winds entities, the purchases

and sales of real estate by the those entities, and the failure to distribute proceeds from the

sales to NC Bioremediation. Additionally, the legal claims raised in the Complaint appear

to at least arguably be facially plausible and warranted by existing law at this stage of the
proceeding. 29 Accordingly, the Court concludes that the Complaint is legally sufficient and

does not violate Rule 11 on this basis. See Polygenex Int'l, Inc., 133 N.C. App. at 239.

16. The facts currently before the Court, however, tend to show that Mauney was

not a member of NC Bioremediation and was not authorized to take action on behalf of the

LLC. Accordingly, the question for the Court is what inquiry into the facts did Plaintiff's

counsel conduct prior to filing the Complaint and was that inquiry a reasonable one under

the circumstances.

17. Prior to filing the Complaint, Plaintiff's counsel: gathered facts from Mauney;

spoke to Mauney's former office assistant, Crystal Smith, who provided hearsay support for

the notion that Mauney had an ownership interest in NC Bioremediation; obtained from

Smith a document allegedly prepared by Overton that implies Mauney and Overton were

both members of NC Bioremediation; spoke with various law enforcement officials regarding

the investigation into Overton's alleged misappropriation of funds from NC Bioremediation,

but these individuals clearly had no personal knowledge regarding Mauney's ownership in

NC Bioremediation; reviewed "public filings," which only listed Overton as a manager or

member of NC Bioremediation; obtained email exchanges between Overton, Saunders and

Mauney in which Overton stated that Mauney was not a member of NC Bioremediation; and

spoke to Saunders who, at least as of September, 2014, had taken the position that Mauney

was not a member of NC Bioremediation. The facts establish that Plaintiff's counsel did not

as part of their inquiry obtain any documentary evidence from Mauney to support his claim

29 Defendants also argue that the Complaint lacks a sufficient legal basis because the Individual

Defendants, as members of Sea Winds, bear no personal liability for any potential harm caused by Sea
Winds. Given that the Complaint alleges that some or all of the Sea Winds entities were dissolved at
some point, and because the principles of piercing the corporate veil have been applied in the LLC
context, see Deluca v. River Bluff Holdings II, LLC, 2015 NCBC LEXIS 12, *29 (N.C. Super. Ct. Jan.
28, 2015), the Court concludes that, as to the naming of the Individual Defendants, Defendants'
argument should be rejected at this stage.
that he held an option to become a member in NC Bioremediation or that he exercised such

an option or contact, and they did not even attempt to contact Overton to obtain his position.

18. The Court is troubled by the contents of the Overton Affidavit, particularly

given the failure to contact Overton prior to filing the Complaint. Plaintiff's counsel has now

filed two separate sworn affidavits that contain contradictory factual claims. Significantly,

the Overton affidavit completely undercuts the basis for Plaintiff's allegations at the time the

Complaint was filed that Mauney was or is a member of NC Bioremediation and that Mauney

had authority to initiate this action. Overton maintains that Mauney was not a member of

NC Bioremediation at the time it was created, and that Overton "was the sole member and

manager" of the company.30 Overton contradicts Mauney's sworn affidavit stating that

Mauney did not exercise an option to acquire ownership in, and never had authority to act

on behalf of, NC Bioremediation.31 Overton also states that despite Mauney's actions he

"remain[s] the manager of NC Bioremediation."32 The competing affidavits appear to create

an irreconcilable conflict between Mauney and Overton regarding their respective rights in

NC Bioremediation and in any recovery that might be obtained on behalf of Plaintiff.

19. Additionally, the Court is troubled by Plaintiff's counsel's attempt at the

hearing to distance themselves from Mauney, and to sidestep the Court's inquiry into issues

concerning Mauney's veracity. Plaintiff's counsel made statements indicating that they were

not themselves convinced of Mauney's credibility, including the credibility of facts contained

in Mauney's affidavit that Plaintiff's counsel filed with this Court. At the hearing, Plaintiff's

counsel contended that NC Bioremediation, and not Mauney, was their client. While it is true

that this action was brought in the name of NC Bioremediation, LLC, the fact remains:

30 Overton Aff. ¶ 3.
31 Id. ¶ 4. This testimony is consistent with Overton's position in other evidence in the record. See Pl.'s
Memo. Opp. Mot. Sanctions, Ex. I. However, this position has now been taken by Overton under oath.
32 Id.
Mauney provided Plaintiff's counsel with the background facts upon which they relied,

directed the filing of the lawsuit on behalf of NC Bioremediation, and verified the Complaint.

20. While the evidence establishes that Plaintiff's counsel conducted some inquiry

into the facts that Mauney provided regarding his membership in, and right to act on behalf

of, NC Bioremediation prior to filing the Complaint, the numerous red flags discussed herein

simply required further inquiry. Particularly striking is Plaintiff's counsel's failure to even

attempt to contact Overton to inquire into the facts surrounding NC Bioremediation prior to

filing the Complaint. Plaintiff's counsel's submission of the Overton Affidavit shortly after

the hearing suggests the apparent ease with which this could have been done. Accordingly,

the Court can only conclude that contacting Overton to get his position on Mauney's

contended ownership, or his approval for filing this action, could have been accomplished

relatively quickly and with little additional effort. Counsel has offered no explanation as to

why the information in the Overton Affidavit could not have been discovered before the

Complaint was filed. Accordingly, the Court concludes that, given the numerous red flags as

discussed above, counsel's investigation into the factual background of the Complaint fell

short of Rule 11's requirement that such an inquiry be reasonable under the circumstances.

21. Defendants also contend that Mauney and Plaintiff's counsel filed the

Complaint for an improper purpose in violation of Rule 11. Given the facts discussed above,

the Court has serious concerns regarding at least Mauney's purpose in pursuing this

litigation. When considered objectively, however, the Court concludes that Defendants have

failed to satisfy their burden of showing that Counsel filed the Complaint improper purpose.

While Defendants have raised the issue of champerty in the Motion for Sanctions, they have

not shown how the litigation finance arrangement in this case constitutes champerty.

Similarly, Defendants have not shown, at this stage, that the Complaint was filed to harass

Mauney's former clients or for a similar improper purpose.
22. Nevertheless, under Rule 11, signing a pleading, motion, or other paper

certifies that all three elements of Rule 11(a) are satisfied, and a "breach of the certification

as to any one of these three prongs is a violation of the Rule." Bryson, 330 N.C. at 655.

Because the Court has determined that Plaintiff's counsel did not undertake a reasonable

inquiry into the facts underlying Mauney's membership in and authority to act on behalf of

NC Bioremediation, the Court concludes that the Motion for Sanctions should be GRANTED.

23. Having concluded that the Motion for Sanctions should be granted, the Court

now turns to the appropriate sanction to be imposed for violation of Rule 11. As North

Carolina appellate courts have made clear, once it is determined that a paper violates Rule

11, the specific sanction imposed for that violation is left to the discretion of the trial court.

See, e.g., Melton v. Stamm, 138 N.C. App. 314, 316 (2000).

24. After thoroughly considering the Motion for Sanctions, the record evidence

filed by the parties, and other appropriate matters of record, the Court concludes, in its

discretion, that dismissal of Plaintiff's action is the most appropriate sanction in this matter.

Having caused Defendants to litigate this matter for six months before ensuring counsel had

authority to represent Plaintiff, counsel have now indicated that they intend to seek leave to

amend the Complaint "to clarify its contents." The basis for Plaintiff's desired amendment

appears to be counsel's reliance on the facts contained in the Overton Affidavit, which

completely contradict a number of allegations in the Complaint and representations of

counsel that Mauney is a member and manager of Plaintiff. Such a dramatic reversal is

troubling, will only serve to unnecessarily prolong this litigation, and will subject Defendants

to further expense.33 The Court sees no possible justification for allowing Plaintiff to keep

33 The Court notes that the Rule 11 violation at issue not only gave rise to the Motion for Sanctions,

but the same factual concerns – Mauney's authority to cause NC Bioremediation, LLC to initiate this
action – underlie Defendants' Motion for Summary Judgment, currently pending before the Court.
Defendants engaged in this litigation while counsel continues to undertake the investigation

they should have made before filing the Complaint.

25. Defendants also have moved the Court for an order requiring Plaintiff's counsel

and Mauney to pay their reasonable attorneys' fees incurred in pursuing this motion. Bryson,

330 N.C. at 656 (recognizing that both counsel and a represented party are subject to

sanctions under Rule 11). As discussed above, Plaintiff's counsel did conduct an inquiry into

Mauney's authority, albeit one that fell short of being reasonable. In addition, it does appear

that NC Bioremediation may have a valid claim to some portion of the proceeds from the sale

of the Sea Winds properties. Finally, the facts do not demonstrate that Plaintiff's counsel

filed this action for an improper purpose. Accordingly, for the foregoing reasons the Court

concludes, in its discretion, that Defendants' request for attorneys' fees should be DENIED.

THEREFORE, IT IS ORDERED that:

26. Defendants' Motion for Sanctions is GRANTED.

27. This action is DISMISSED, WITHOUT PREJUDICE.

28. Defendants' request for attorneys' fees is DENIED.

This the 15th day of October, 2015.

/s/ Gregory P. McGuire
Gregory P. McGuire
Special Superior Court Judge
for Complex Business Cases