DELAWARE RIVER PORT AUTHORITY, Plaintiff, v. KEVIN D. WALSH, Acting New Jersey State Comptroller, in his official capacity, Defendant.
Civil Action No. 24-8186 (MAS) (JTQ)
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
July 31, 2025
SHIPP, District Judge
NOT FOR PUBLICATION
SHIPP, District Judge
This matter comes before the Court upon Defendant Acting New Jersey State Comptroller Kevin D. Walsh‘s (“Defendant“) Motion to Dismiss (ECF No. 5) Plaintiff Delaware River Port Authority‘s (“Plaintiff“) Complaint (ECF No. 1). Plaintiff opposed (ECF No. 9) and filed a Cross-Motion for Summary Judgment (“Cross-Motion“) (ECF No. 10). Defendant replied in further support of his Motion to Dismiss and opposed the Cross-Motion. (ECF No. 14.) Plaintiff replied in further support of its Cross-Motion. (ECF No. 15.) The Court has carefully considered the parties’ submissions and reaches its decision without oral argument under Local Civil Rule 78.1(b). For the reasons below, Defendant‘s Motion to Dismiss is granted.
A. Factual Background1
This case arises out of Defendant‘s service of two subpoenas on Plaintiff in connection with Plaintiff‘s procurement of goods and services, leases and sale of real property, and collection, maintenance, and reporting of records. (Compl. ¶¶ 28-42, ECF No. 1; see also id. at Exs. 2-3.)
1. The Parties
a. Delaware River Port Authority
Plaintiff is a bi-state entity of New Jersey and Pennsylvania that “develop[s] and maintain[s] interstate transportation routes, namely bridges and port facilities, between the two states.” (Id. ¶¶ 11-14.) Plaintiff was created by an interstate compact (the “Compact“) between New Jersey and Pennsylvania in 1931 that was approved by the United States Congress in 1932. (Id. ¶¶ 11-12.) The Compact extends authority to Plaintiff to carry out certain “essential government functions.” (See id. ¶ 19; id. at Ex. 1 (“Compact“), Art. I.) Namely, Article I of the Compact delineates the specific “public purposes” of Plaintiff, which Plaintiff “shall be deemed to be exercising an essential governmental function in effectuating.” (Compact, Art. I.) Further, Article IV grants Plaintiff several enumerated powers “[f]or the effectuation of its authorized purposes” including “[t]o sue and be sued,” hire or employ officers, agents, and employees, enter into contracts, acquire real and personal property, borrow money, exercise the right of eminent domain, and “exercise all other powers not inconsistent with the constitutions of the two States or of the United States, which may be reasonably necessary or incidental to the effectuation of its authorized purposes.” (Compact, Art. IV.) Such powers may be altered or expanded “by the action
b. Acting Comptroller of New Jersey
Defendant is the Acting Comptroller of New Jersey (id. ¶ 5) and derives his authority from two New Jersey statutes:
program of investigation, to . . . investigate complaints concerning alleged fraud, waste, abuse, or mismanagement of State funds, designed to provide increased accountability, integrity, and oversight of: all recipients of State funds, including, but not limited to, State departments and agencies, independent authorities, county and municipal governments, and boards of education.
(Id. ¶ 59 (emphasis omitted) (quoting
the awarding and the execution of contracts awarded by the State, or any of its independent authorities, commissions, boards, agencies, or instrumentalities, which contracts involve a significant expenditure of public funds . . . and [to investigate] the performance of governmental officers, employees, appointees, functions, and programs in order to promote efficiency, to identify cost savings, and to detect and prevent misconduct within the programs and
operations of any governmental agency funded by, or disbursing, State funds.
(Id. ¶ 60 (emphasis omitted) (quoting
The Comptroller Statute similarly tasks the Office of the State Comptroller with conducting:
routine, periodic and random audits of the Executive branch of State government, including all entities exercising executive branch authority, public institutions of higher education, independent State authorities, units of local government and boards of education and . . . conducting assessments of the performance and management of programs of the Executive branch of State government, including all entities exercising executive branch authority, public institutions of higher education, independent State authorities, units of local government and boards of education and the extent to which they are achieving their goals and objectives.
(Id. ¶ 51 (emphasis omitted) (quoting
2. The Subpoenas
On July 2, 2024, Defendant issued a subpoena duces tecum to Plaintiff (the “Documents Subpoena“) requesting “documents related to seven separate categories of requested information.” (Id. ¶ 29; see also id. at Ex. 2.) The Documents Subpoena “demanded” that Plaintiff provide all requested information to Defendant by July 16, 2024. (Id. ¶ 30.) The Documents Subpoena further stated that it was issued pursuant to Defendant‘s statutory authority, and that “[f]ailure to comply with this Subpoena may render [Plaintiff] liable for contempt of court and such other penalties as are provided by law.” (Id. ¶ 32; see also id. at Ex. 2.)
After receiving the Subpoenas, Plaintiff “offered to voluntarily provide the documents requested in the Documents Subpoena” in exchange for Defendant‘s withdrawal of the Subpoenas. (Id. ¶ 42.) “That offer was not accepted.” (Id.)
B. Procedural Background
On July 31, 2024, Plaintiff brought the instant action. (See generally id.) The Complaint includes two counts: declaratory judgment (“Count One“); and injunctive relief (“Count Two“). (Id. ¶¶ 72-84.) Specifically, Plaintiff claims that Defendant, in “impos[ing] legal obligations on [Plaintiff] through the Subpoenas,” is “infring[ing] on the protections afforded [Plaintiff] in the Compact and is a violation of federal law.” (Id. ¶¶ 74, 77 (“The [Defendant‘s] demands that [Plaintiff] comply with the Subpoenas infringes on [Plaintiff‘s] sovereign authority and rights under the Compact, the United States Constitution, and other federal law.“).)
On October 21, 2024, Defendant moved to dismiss the Complaint for four reasons: (1) Plaintiff‘s claims are not ripe for review and therefore the Court lacks subject matter jurisdiction; (2) Plaintiff‘s claims were filed without proper authorization from its board; (3) Plaintiff‘s state-law claims are barred by sovereign immunity; and (4) the subpoenas are within
While this action was pending in this Court, in October 2024, Defendant filed a motion in the Superior Court of New Jersey to enforce the Subpoenas, and Plaintiff thereafter filed a motion to dismiss. (See Pl.‘s Feb. 2025 Correspondence, ECF No. 16.) On January 30, 2025, the Superior Court denied Defendant‘s motion to enforce the Subpoenas against Plaintiff, stating that “comity and common-sense counsel deference to the Court‘s federal colleagues” and finding that the first-filed rule applied. (Pl.‘s Feb. 2025 Correspondence at *4-6.3)
II. LEGAL STANDARD
A. Motion to Dismiss—Rule 12(b)(1)
Under
A facial challenge asserts that “the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction.” Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999). As such, a facial challenge “calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under
B. Motion to Dismiss—Rule 12(b)(6)
A district court conducts a three-part analysis when considering a motion to dismiss under
III. DISCUSSION
For the reasons set forth below, the Court finds that: (1) Plaintiff‘s claims are ripe for review; (2) Plaintiff‘s claims are not barred by sovereign immunity; and (3) Defendant‘s issuance of subpoenas does not violate Plaintiff‘s rights pursuant to the Compact. The Court addresses each finding in turn.5
A. Plaintiff‘s Claims Are Ripe
As a preliminary matter, the Court addresses whether Plaintiff‘s claims are ripe.
1. Legal Standard
“Article III of the Constitution limits the federal judiciary‘s authority to exercise its ‘judicial [p]ower’ to ‘Cases’ and ‘Controversies‘” over which the federal judiciary is empowered to decide. Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 538 (3d Cir. 2017) (quoting
Federal courts ensure that they are properly enforcing the case-or-controversy limitation “through the several justiciability doctrines that cluster about Article III . . . including ‘standing, ripeness, mootness, the political-question doctrine, and the prohibition on advisory opinions.‘” Plains All Am. Pipeline L.P., 866 F.3d at 539 (quoting Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 137 (3d Cir. 2009)). “Ripeness concerns whether the legal issue at the time presented in a court is sufficiently concrete for decision.” United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977). “Courts will not decide abstract legal issues posed by two parties; the issue in controversy must have a practical impact on the litigants.” Id. (citing Abbott Lab‘ys v. Gardner, 387 U.S. 136, 148-54 (1967)).
In its most basic form, an unripe claim is evident if upon inspection it is necessarily hypothetical, speculative, or contingent on some other yet-to-happen event. Trump v. New York, 592 U.S. 125, 131 (2020) (defining “ripe” as, in part, an issue that is “not dependent on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all‘“) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)); see also Marathon Petroleum Corp. v. Sec‘y of Fin. for Del., 876 F.3d 481, 497 (3d Cir. 2017) (finding that when an alleged injury is premised on some speculative future harm, “a decision . . . would be inconclusive and lacking in practical utility absent further factual development“).
Where a federal court finds that a claim is not ripe, the court lacks subject-matter jurisdiction to adjudicate the unripe claim. Renne v. Geary, 501 U.S. 312, 316 (1991) (“Concerns
The Third Circuit considers whether claims for declaratory and injunctive relief are ripe under the three-factor Step-Saver test. Plains All Am. Pipeline L.P., 866 F.3d at 540. The Step-Saver test directs courts to analyze: “(1) the adversity of the parties’ interests[;] (2) the conclusiveness of the judicial judgment[;] and (3) the utility of that judgment.” Freehold Cogeneration Assocs., L.P. v. Bd. of Regul. Comm‘rs of N.J., 44 F.3d 1178, 1188 (3d Cir. 1995); see also NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 342 (3d Cir. 2001); Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990).
2. Applicability of First Choice
Before diving into the Step-Saver test, the Court addresses Defendant‘s argument that First Choice Women‘s Resource Centers, Inc. v. Platkin, No. 23-23076, 2024 WL 150096 (D.N.J. Jan. 12, 2024) is directly applicable, and therefore this matter is not ripe for review. (Def.‘s Moving Br. 10-12; Def.‘s Reply Br. 3-5.) Specifically, Defendant argues that here, like in First Choice, the “subpoenas ‘are not “self-executing” because they require court intervention,’ and unless and until that intervention occurs, [Plaintiff] has not suffered an actual or imminent injury.” (Def.‘s Moving Br. 12 (quoting First Choice, 2024 WL 150096, at *3).) The Court disagrees.
While the facts in this case are similar to those in First Choice because both cases arose from the service of “non-self-executing state administrative subpoena[s],” the alleged injuries are distinct. First Choice, 2024 WL 150096, at *5 n.7. In First Choice, the alleged injury was contingent upon the enforcement of the subpoena. First Choice, 2024 WL 150096, at *3 (“[A] constitutionally-sufficient injury can only occur . . . if the state court tasked with enforcing the subpoena refuses to quash or modify the constitutionally-infirm subpoena.“). In contrast, here, Plaintiff‘s alleged injury is being wrongly subjected to Defendant‘s subpoena authority. (Compl. ¶ 3 (“[Defendant‘s] attempt . . . to compel [Plaintiff] to provide documents and witness testimony, infringes upon [Plaintiff‘s] sovereign authority under the Compact and deprives [Plaintiff] of its liberty, rights and privileges secured under the United States Constitution and federal law.“).) Such an injury is not contingent on the enforcement of the Subpoenas, but is rather contingent on the issuance of the Subpoenas, themselves. That the alleged injury in First Choice was contingent on subpoena enforcement was the dispositive factor for determining ripeness. 2024 WL 150096, at *4
3. Step-Saver Test
Having determined that First Choice is not applicable, the Court moves on to the Step-Saver test to determine whether Plaintiff‘s claims are otherwise ripe for review. First, the Court addresses the first factor of the Step-Saver test: adversity. “‘[F]or there to be an actual controversy[,] the defendant must be so situated that the parties have adverse legal interests.‘” Presbytery of N.J. of Orthodox Presbyterian Church, 40 F.3d at 1463 (quoting Step-Saver, 912 F.2d at 648). Adversity may exist when a party challenges the authority of another to subject it to a particular process. See Freehold Cogeneration Assocs., L.P., 44 F.3d at 1189 (holding that a preemption challenge to ongoing proceedings before the N.J. Board of Regulatory Commissioners was ripe even though “the plaintiff did not challenge the state‘s ultimate substantive decision, but rather its authority to conduct proceedings“); Siemens USA Holdings Inc. v. Geisenberger, 17 F.4th 393, 413 (3d Cir. 2021) (citing Marathon Petroleum, 876 F.3d at 498-99) (“[W]e have held there is sufficient adversity in an auditing-authority challenge when a state has actually requested information and the request is itself the claimed harm.“).
The Court finds the reasoning of Marathon Petroleum Corp. particularly compelling. 876 F.3d at 498-99. In Marathon, the plaintiffs, two Delaware business entities, brought suit against the Secretary of Finance for Delaware, “challeng[ing] Delaware‘s right to conduct an audit.” Id. at 484. Plaintiffs argued that “under the rules of priority and preemption laid down by the Supreme
Here, Plaintiff challenges Defendant‘s authority to unilaterally “conduct investigations . . . and to further those investigations by issuing subpoenas under New Jersey law in an attempt to compel [Plaintiff] to provide documents and witness testimony.” (Compl. ¶ 3.) Since “the claimed injury ‘is the process itself,’ . . . the interests of the parties are clearly adverse.” Marathon Petroleum Co., 876 F.3d at 499 (quoting Sayles Hydro Assocs., 985 F.2d at 454); NE Hub, 239 F.3d at 342 (“[T]he process itself may give rise to adversity so that an action challenging the process is ripe even before the process concludes.“). Plaintiff‘s alleged injury “is the process itself,” id.; it is the allegedly wrongful subjection to Defendant‘s subpoena authority. (Comp. ¶ 3). The parties, thus, are sufficiently adverse.
Second, the Court addresses the Step-Saver factor of conclusiveness. A judgment is conclusive where it “definitively would decide the parties’ rights.” NE Hub, 239 F.3d at 344. This factor demands that the Court consider “the extent to which further factual development of the case would facilitate decision, so as to avoid issuing advisory opinions, or whether the question presented is predominantly legal.” Id. This factor “is part and parcel of the constitutionally
Third, the Court addresses the final Step-Saver factor: utility of the judgment. Under this factor, “a case should not be considered justiciable unless ‘the court is convinced that [by its action] a useful purpose will be served.‘” Presbytery of N.J. of Orthodox Presbyterian Church, 40 F.3d at 1464 (quoting Step-Saver, 912 F.2d at 649). Here, the Court finds that a judgment would be useful because it would “clarify [the] legal relationships” so that Plaintiff and Defendant “could make responsible decisions about the future.” Marathon Petroleum Co., 876 F.3d at 499 (quoting Step-Saver, 912 F.2d at 649) (finding that a decision addressing whether a state had the authority
Having found that each of the three Step-Saver factors weigh in favor of ripeness, the Court, accordingly, finds Plaintiff‘s claims are ripe for review.
B. Plaintiff‘s Claims Are Not Barred by Sovereign Immunity
Next, the Court addresses whether Plaintiff‘s claims are barred by sovereign immunity under the Eleventh Amendment. For the reasons set forth below, the Court concludes the claims are not barred.
Defendant argues that the Complaint alleges that Defendant violated the Inspector General Statute and the Comptroller Statute by issuing subpoenas beyond its authority and that such a ”state-law claim . . . must be dismissed because it is barred by sovereign immunity under the Eleventh Amendment.” (Def.‘s Moving Br. 13 (emphasis in original).) Specifically, Defendant argues that because it did not consent to suit and because the Ex Parte Young exception “permit[ting] litigants to seek injunctive relief in federal court to prevent ongoing violations of federal law by state officials” is only applicable to federal law claims, the “state-law claims” alleged by Plaintiff are barred by sovereign immunity and must be dismissed. (Id. at 13-14.)
Plaintiff maintains that it does not allege a state-law claim and accordingly argues that Defendant‘s sovereign immunity defense is meritless. (Pl.‘s Opp‘n Br. 38.) Namely, Plaintiff “contends that [Defendant‘s] issuance of the Subpoenas to [Plaintiff] violated the . . . Compact and federal law governing interstate compacts,” and thus positions the claim “squarely within the Ex Parte Young exception to sovereign immunity.” (Id. at 38-40 (internal quotation marks and citations omitted).)
An exception to the State‘s Eleventh Amendment immunity is the Ex Parte Young doctrine. Under Ex Parte Young, “individual state officers can be sued . . . for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law.” MCI Telecomms. Corp. v. Bell Atl. Pa., 271 F.3d 491, 506 (3d Cir. 2001) (citing Ex Parte Young, 209 U.S. 123 (1908)). Ex Parte Young is based on the theory that a state officer has no authority to violate federal law and thus, when the official does so, even pursuant to state law, the official “is stripped of his official or representative character and becomes subject to the consequences of his individual conduct.” Id.
The Supreme Court has found that the Ex Parte Young exception should not be given an expansive scope. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984). For Ex Parte Young to apply, a suit must seek both prospective relief and a remedy to an ongoing or continuing violation of federal law. Green v. Mansour, 474 U.S. 64, 68 (1985); see also Verizon Md., Inc. v. Pub. Serv. Comm‘n of Md., 535 U.S. 635, 645 (2002) (holding that whether Ex Parte Young applied required a “straightforward inquiry into whether the complaint alleges an ongoing
Here, Plaintiff alleges that Defendant, by issuing the Subpoenas on Plaintiff, is “infring[ing] on the protections afforded [Plaintiff] in the Compact.” (Compl. ¶¶ 74, 77 (“The [Defendant‘s] demands that [Plaintiff] comply with the Subpoenas infringes on [Plaintiff‘s] sovereign authority and rights under the Compact.“).) Under the Compact Clause of the United States Constitution,
C. Defendant‘s Issuance of the Subpoenas Does Not Violate the Compact
Having determined that the case is ripe and that Plaintiff‘s claim is not barred by sovereign immunity, the Court addresses the question of whether Defendant‘s issuance of the non-self-executing administrative Subpoenas to Plaintiff violates Plaintiff‘s rights established pursuant to the Compact. (See Compl. ¶¶ 72-84.)
It is well settled that “[a] bi-state entity, created by compact, is not subject to the unilateral control of any one of the States that compose the federal system.” HIP Heightened Indep. & Progress, Inc. v. Port Auth. of N.Y. & N.J., 693 F.3d 345, 356 (3d Cir. 2012) (quoting Loc. 542, 311 F.3d at 281) (internal quotation marks omitted). When states enter into such compacts under the Compact Clause, they “‘surrender . . . a portion of their sovereignty’ to an ‘independently functioning part[ ] of a regional polity and of a national union.‘” Id. (quoting Loc. 542, 311 F.3d at 276). But “‘[t]he background notion that a State does not easily cede its sovereignty has
To determine the exact confines of what sovereignty states have ceded to a bi-state entity under a compact, courts apply principles of contract law. Wayne Land & Mineral Grp. LLC, 894 F.3d at 527 (quoting Tarrant Reg‘l Water Dist., 569 U.S. at 628). Under these principles, the court must first look to the express terms of the Compact to determine the parties’ intent regarding the scope of their surrender of sovereignty to the bi-state entity. See id.; Spence-Parker, 616 F. Supp. 2d at 515 (quoting Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 105 (3d Cir. 2008)) (“The terms of a state‘s surrender of a portion of its sovereignty to a compact clause entity are found in the compact agreement itself, which is a ‘contract[ ] subject to the principles of contract law.‘“).
In general, courts undertake this analysis in two steps. First, the court determines whether the action performed by the bi-state entity falls within the bi-state entity‘s authorized purposes and powers, as determined by the text of the compact. See Keystone Outdoor Advert. Co., Inc. v. Sec‘y of Pa. Dep‘t of Transp., No. 19-5951, 2022 WL 2805335, at *6 (E.D. Pa. July 18, 2022) (“determining whether a state can unilaterally regulate the bi-state entity on a particular issue . . . is a question of the rights and powers the states surrendered to the entity in their negotiated Compact” (cleaned up)). If the court finds that the action does fall within the authorized purposes and powers of the bi-state entity, the court next determines whether the states have nonetheless reserved their
Here, the factual posture does not fit within this general framework. Plaintiff has not acted, and the Court has not been presented with the question of whether Plaintiff‘s actions fall within its authorized purposes and powers under the Compact. Rather, the Court is presented with the question of whether Defendant‘s actions—issuance of the Subpoenas—violates Plaintiff‘s rights established under the Compact. (See generally Compl.) When presented with this issue, the Third Circuit instructs the court to look to Defendant‘s actions to see if they “fall within the scope of the Compact‘s text.” Wayne Land & Mineral Grp. LLC, 894 F.3d at 528; see also Del. River Joint Toll Bridge Comm‘n, 985 F.3d at 195 (reviewing “whether [the secretary‘s] proposed [regulatory]
Simply put, there is no text in the Compact to suggest that Plaintiff‘s authorized purposes and powers include the issuance of subpoenas or self-investigation in the form of subpoenas. (See generally Compact.) Without such a purpose or power, there is nothing to bar Defendant from issuing the Subpoenas to Plaintiff.8 The Court “may not read into [the Compact] language or intent that is simply not there.” Loc. 542, 311 F.3d at 280.
While Article XII of the Compact includes mandates for Plaintiff to annually submit certain information to the party states and to “cause a management audit of its operational effectiveness and efficiency” by an independent entity at least every five years, (Compact, Art. XII), such mandates, by their plain text, do not equate to or touch upon issuance of subpoenas or Plaintiff‘s authority in relation to subpoenas. See Loc. 542, 311 F.3d at 276 (“Such a surrender of state sovereignty should be treated with great care, and the Supreme Court has stated that courts should not find a surrender unless it has been ‘expressed in terms too plain to be mistaken.‘“) (quoting Jefferson Branch Bank v. Skelly, 66 U.S. 436, 446 (1861)). Seeing no text in the Compact to support the argument that subpoena issuance is a purpose and power of Plaintiff, it follows that Defendant‘s express reservation of such authority either in the language of the Compact or via concurring legislation is unnecessary, as such sovereign authority was never ceded. See New York, 598 U.S. at 225 (“The background notion that a State does not easily cede its sovereignty has informed [the Supreme Court‘s] interpretation of interstate compacts.“) (quoting Tarrant Reg‘l Water Dist., 569 U.S. at 631). Plaintiff‘s rights under the Compact, accordingly, are not violated by Defendant‘s issuance of a non-self-executing state administrative subpoena.
Despite having found that Defendant‘s actions issuing the Subpoenas are not barred under the Compact, the Court finds it necessary to distinguish other cases concerning bi-state entities cited by Plaintiff. Contrary to those cases, Defendant does not seek to “control” or “regulate” Plaintiff, as was the intention in other cases involving bi-state entities. See, e.g., Keystone Outdoor, 2022 WL 2805335, at *3 (holding that the Secretary of Pennsylvania Department of Transportation violated the Compact by attempting to enforce its outdoor advertising regulations on billboards located on the Delaware River Port Authority‘s property); Del. River Joint Toll Bridge Comm‘n, 985 F.3d at 192 (holding that the Secretary of Pennsylvania Department of Labor violated a compact by attempting to enforce its building and safety regulations against the bi-state entity). Comparing cases involving the act of being issued a subpoena with cases where parties sought enforcement of the use of collective bargaining laws, Loc. 542, 311 F.3d at 274-75, employment protection laws and laws against discrimination, Spence-Parker, 616 F. Supp. 2d at 518-21, construction codes, Del. River Joint Toll Bridge Comm‘n, 985 F.3d at 192-93, and billboard regulations, Keystone Outdoor, 2022 WL 2805335, at *3, is inapposite. Here, Defendant has no authority to control or regulate Plaintiff, nor does he claim to have such authority.9 The Subpoenas are non-self-executing state administrative subpoenas with which Plaintiff has no obligation to
IV. CONCLUSION
For the reasons set forth above, Defendant‘s Motion to Dismiss is granted. Also pending before the Court is Plaintiff‘s Cross-Motion for Summary Judgment. (ECF No. 10.) Because the Court grants Defendant‘s Motion to Dismiss, Plaintiff‘s pending Motion for Summary Judgment is denied as moot. Should Plaintiff file an amended complaint, Plaintiff may refile its motion for summary judgment at that time. The Court will issue an Order consistent with this Memorandum Opinion.
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE