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govinfo:USCOURTS-kyed-0_26-cv-00022-0
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
BLUE GRASS COMMUNITY
FOUNDATION, INC.,
Plaintiff,
v.
DONNA SALYER
and
MAGOFFIN COUNTY COMMUNITY
FOUNDATION, INC.,
Defendants.
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No. 0:26-CV-00022-REW-EBA
OPINION & ORDER
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This matter is before the Court on Defendant s Donna Salyer and Magoffin County
Community Foundation, Inc.’s (“MCCF, Inc.”) motion to dismiss Plaintiff Blue Grass Community
Foundation, Inc.’s (“BGCF”) Complaint (DE 1) under Federal Rule of Civil Procedure 12(b)(6).
See DE 6 (Motion). The motion is fully briefed. See DE 8 (Response); DE 9 (Reply). For the
reasons that follow, the Court DENIES Defendants’ Motion.
I. Background
BGCF is a non-profit entity that manages a collection of “subsidiary endowed community
funds designed to improve the quality of life” in its community affiliates. DE 1 at ¶ 12. To do so,
BGCF “accepts donations to the funds, oversees the operations of the funds through the BGCF
Board of Directors, and works with advisory boards for the funds…to award grants and fund
projects” that furthers the needs of its communities. Id. at ¶ 13. In 2002, Scotty Patrick and BGCF
executed an Agreement creating a permanent endowment affiliate of BGCF known as the
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Magoffin County Community Foundation (the “Affiliate Fund”). See DE 1-1 (Agreement). The
Affiliate Fund was established to carry out charitable and educational purposes for the benefit of
Magoffin County, Kentucky. See id. at ¶ 1; DE 1-1 at 1. The Agreement provided that the Affiliate
Fund would join the pool of BGCF investments and establish a volunteer Board of Directors
composed of Magoffin County residents specific to the Fund. See DE 1-1 at 2. The Affiliate Fund
agreed to pay BGCF the standard management fees assessed to the Affiliate Fund’s individual
funds. See id.
The Agreement also provides that the Affiliate Fund may withdraw from BGCF and
become an independent community foundation “upon mutual written consent, which shall not be
unreasonably withheld.” Id. at 3. BGCF’s consent is contingent upon the Affiliate Fund providing
written assurance that it meets the following conditions, to wit that it:
1) has incorporated under the laws of the state of Kentucky, 2) has received
recognition from the Internal Revenue Service as a 501(c)(3) tax exempt
organization, and 3) has written into its articles of incorporation a dissolution clause
that names the Blue Grass Community Fo undation as the recipient of its assets in
the event it loses its recognition as a public foundation or ceases to function, unless
it has named as recipient of its assets another 501(c)(3) tax exempt organization
that will maintain the charitable purposes and the donors’ intent of the funds for the
benefit of Magoffin County.
Id. at 3-4. Defendant Salyer, a Magoffin County resident who, for many years, served as a member
of the Affiliate Fund’s Board of Directors, purported to initiate the disaffiliation process on August
28, 2025, by filing Articles of Incorporation for Defendant MCCF, Inc. See DE 1 at ¶¶ 10, 18, 24;
DE 1-4. On November 3, 2025, Salyer filed Amended and Restated Articles of Incorporation for
MCCF, Inc. to add a dissolution provision compliant with the third condition for disaffiliation.
See DE 6-3 at 5. The Affiliate Fund has not disaffiliated from BGCF yet , however, as (perhaps
among other things) it has not fulfilled all conditions precedent for obtaining BGCF’s consent
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because MCCF, Inc. has not received 501(c)(3) tax exempt status from the IRS. See DE 6-1 at 3.
The position of the Affiliate Fund Board is not clear, on this record.
After Mr. Patrick’s 2024 death, Defendant Salyer was appointed as the Executrix of
Patrick’s Estate and as successor Trustee of Patrick’s revocable living trust. See DE 1 at ¶ 29. In
these capacities, Salyer has allegedly taken certain actions contrary to her responsibilities as a
member of the Affiliate Fund Board and Mr. Patrick’s final wishes. See id. First, BGCF alleges
Salyer “attempted to bring the proceeds of an investment fund under the control of the Estate, even
though a beneficiary designation directed that those proceeds were payable upon the death of Mr.
Patrick to BGCF.” Id. at ¶ 30. Second, Salyer improperly moved for and obtained an order from
the Magoffin District Court directing an investment company to pay the proceeds of an account to
the Estate “by representing that a fund in the name of ‘The Buck and Lillie May Patrick Memorial
Fund’ does not exist.” Id. at ¶ 31. The account allegedly should have gone to a fund within the
Affiliate Fund.
BGCF initiated this action against Salyer and MCCF, Inc. on November 17, 2025, claiming
trademark infringement under the Lanham Act (15 U.S.C. § 1125(a)), tortious interference with a
prospective advantage, breach of fiduciary duty, and breach of contract. See DE 1. In lieu of
answering, Defendants filed a motion to dismiss, or in the alternative, a motion to remand to state
court. See DE 6; DE 6-1. The case was not removed, so remand is not in play.
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief [.]” This pleading standard
requires more than “a formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly , 127 S. Ct. 1955, 19 64-65
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(2007)). To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege facts that ,
if accepted as true, “state a claim to relief that is plausible on its face .” Twombly, 127 S. Ct. at
1974. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 127 S. Ct. at 19 67). If the non -moving party’s
pleading does not do so, or if the non -moving party is barred from recovering on its claims as a
matter of law, then dismissal is warranted. See League of United Latin Am. Citizens v. Bredesen,
500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 127 S. Ct. at 1969). Courts “must construe
the complaint in the light most favorable to the plaintiff ” and “accept all well-pleaded factual
allegations as true[.]” Gaines v. Cross, 168 F.4th 403, 406 (6th Cir. 2026).
Ordinarily, district courts are not permitted to consider matters beyond the complaint when
considering a motion to dismiss under Rule 12(b)(6). See Wershe v. City of Detroit, Mich. , 112
F.4th 357, 372 (6th Cir. 2024) . If the district court does consider matters beyond the complaint,
the normal procedure is to “convert the motion to dismiss into a motion for summary judgment.”
Id. However, a court may consider “exhibits attached to the complaint , exhibits attached to the
motion to dismiss briefing, items in the record, or public records without converting the motion to
dismiss when these items ‘are referred to in the [c]omplaint and are central to the claims contained
therein.’” Id. at 372-73 (quoting Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th
Cir. 2008) ). The Court thus disregards the affidavit and any other extra -record materials not
properly within the Rule 12 rubric.
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III. Analysis
a. Trademark Infringement
Defendants move to dismiss BGCF’s trademark infringement claim for failure to state a
claim upon which relief may be granted. See DE 6-1 at 5-10. The Lanham Act defines a trademark
as “any word, name, symbol, or device…used by a person…to identify and distinguish his or her
goods, including a unique product, from those manufactured or sold by others and to indicate the
source of goods, even if that source is unknown.” 15 U.S.C. § 1127 . “To state a claim for
trademark infringement under the Lanham Act, a plaintiff must allege facts establishing that: (1)
it owns the registered trademark ; (2) the defendant used the mark in commerce; and (3) the use
was likely to cause confusion.” NetJets Inc. v. IntelliJet Group, LLC, 602 F. App’x 242, 244 (6th
Cir. 2015) (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)).
BGCF claims to have a valid unregistered trademark 1 in “Magoffin County Community
Foundation” and that Defendants’ unauthorized use of the disputed trademark is likely to cause
confusion as to source in the charitable community and affiliation with BGCF and the Affiliate
Fund. See DE 1 ¶¶ 39-43. Unregistered trademarks are afforded “essentially the same protection
as those that are registered.” ETW Corp. v. Jireh Pub., Inc. , 332 F.3d 915, 921 (6th Cir. 2003)
(citing Two Pesos, Inc. v. Taco Cabana, Inc., 112 S. Ct. 2753 (1992)). “When evaluating a Lanham
Act claim for infringement of an unregistered mark, courts must determine whether the mark is
protectable, and if so, whether there is a likelihood of confusion as a result of the would -be
1 Both parties refer to the disputed mark “Magoffin County Community Foundation” as a trademark.
However, the Court notes that the disputed mark seems to be more appropriately labeled a service mark.
See 15 U.S.C. § 1127 (“The term ‘servi ce mark’ means any word, name, symbol, or device …used by a
person…to identify and distinguish the services of one person, including a unique service, from the services
of others and to indicate the source of the services, even if that source is unknown.”) . The distinction is
inconsequential, as “ rights to service marks are acquired and protected in the same way as rights to
trademarks.” Circuit City Stores, Inc. v. CarMax, Inc. , 165 F.3d 1047, 1054 (6th Cir. 1999) . Consistent
with the parties, the Court will refer to the disputed mark as a trademark.
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infringer’s use of the mark.” T Marzetti Co. v. Roskam Baking Co. , 680 F.3d 629, 633 (6th Cir.
2012) (quoting Tumblebus v. Cranmer, 399 F.3d 754, 761 (6th Cir. 2005)).
1. BGCF has alleged facts sufficient to show a protectable trademark
Defendants assert that BGCF has not established ownership of a protectable trademark.
See DE 6-1 at 6. Unregistered trademark protectability “is determined by where the mark falls
along the established spectrum of distinctiveness. Id. (quoting DeGidio v. West Group Corp., 355
F.3d 506, 510 (6th Cir. 2004)). “Marks are classified in the following categories of increasing
distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful .” Id.
Generic marks, the weakest in distinctiveness, are those that “are primarily associated with a type
of product rather than with the producer .” Id. at 633 -34. (quoting Nartron Corp. v.
STMicroelectronics, Inc., 305 F.3d 397, 404 (6th Cir. 2002)). Examples of generic terms include
“aspirin” or “escalator.” See Champions Golf Club, Inc. v. The Champions Golf Club, Inc. , 78
F.3d 1111, 1117 (6th Cir. 1996). Generic marks receive no protection. Tumblebus, 399 F.3d at
761-62. A trademark is descriptive if it describes the intended purpose of the product or service.
See Wynn Oil Co. v. Thomas , 839 F.2d 1183, 1190 (6th Cir. 1998). A descriptive mark receives
protection “only upon a showing of secondary meaning.” Champions Golf Club, 78 F.3d at 1117.
A mark acquires secondary meaning when it becomes distinctive of the entity’s goods or services.
See Induct-O-Matic Corp. v. Inductotherm Corp. , 747 F.2d 358, 362 (6th Cir. 1984) ; see also
Circuit City Stores, I nc., 165 F.3d at 1054 (“Secondary meaning is defined as public association
of a product or service with a single source[.]”).
Defendants argue that “Community Foundation” is generic and thus not entitled to
protection. But this argument does not consider the unregistered mark in its entirety : Magoffin
County Community Foundation. The additional detail assuredly adds a distinctive layer to the
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mark not contemplated by Defendants’ argument.2 It is unclear why the Court would analyze only
a portion of Defendants’ alleged trademark in determining whether the mark is sufficiently
distinctive.
“Magoffin County Community Foundation” is not merely generic. It is not comparable to
other generic terms listed above nor is it a term associated with a product or service rather than an
entity. See T Marzetti Co., 680 F.3d at 633. The term is more properly characterized as descriptive
because it “describes the intended purpose” of the fund. See Wynn Oil Co. , 839 F.3d at 1190.
Moreover, BGCF has alleged facts sufficient to show that it , through over 20 years of use, has
acquired secondary meaning. BGCF alleges that it has a page on its website devoted to the mark
that includes information about the Affiliate Fund and a statement from Mr. Patrick explaining
why he partnered with BGCF to create the Affiliate Fund. See DE 1 at ¶ 21. BGCF alleges that it
accepts, and has in fact received, donations through the webpage from individual and
organizational donors from several states. See id. at ¶¶ 21-22. Therefore, the Court declines to
grant Defendants’ motion based on this element of BGCF’s claim.
2. BGCF has alleged facts sufficient to show a likelihood of confusion
Whether Defendants’ use of the disputed trademark is likely to cause confusion among
consumers regarding the origin of the goods or services offered by the parties is the “touchstone”
of trademark infringement liability. See Hensley Mfg., 579 F.3d at 610. Courts typically weigh
the following factors when evaluating likelihood of confusion:
(1) strength of the senior mark; (2) relatedness of the goods or services; (3)
similarity of the marks; (4) evidence of actual confusion; (5) marketing channels
2 In fact, Defendants note that the United States Patent and Trade Office’s database contains over 4,000 live
registered trademarks containing “Community Foundation” and over 6,000 marks containing same that
have been cancelled or abandoned. See DE 6-1 at 7. This reflects that the USPTO considers a Community
Foundation named for a specific person, community, purpose, etc. not generic and potentially entitled to
mark protection.
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used; (6) likely degree of purchaser care; (7) the intent of defendant in selecting the
mark; and (8) likelihood of expansion of the product lines.
Frisch’s Rests., Inc. v. Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir. 1982). The
Frisch’s factors “imply no mathematical precision, but are simply a guide to help determine
whether confusion is likely.” Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d
1100, 1107 (6th Cir. 1991). “The ultimate question remains whether relevant consumers are likely
to believe that the products or services offered by the parties are affiliated in some way.” Id.
Defendants’ primary argument is that there is no likelihood of confusion because once the
Affiliate Fund completes the disaffiliation process, the Affiliate Fund will no longer be affiliated
with or exist as a subsidiary of BGCF . See DE 6 -1 at 9 -10. In essence, there can be no
infringement where there is no competing trademark . This, of course, begs the question of
disaffiliation effectiveness, propriety, and legal impact. One issue now is that the disaffiliation
process is incomplete such that the Affiliate Fund , on this record, still exists as an active fund
under BGCF’s management. True enough that the status of this claim could evolve based on
disaffiliation. But until that happens, the Fund still exists as a subsidiary component of BGCF.
Against this backdrop, the Court considers the factors enumerated in Frisch’s.
First, the strength of the senior mark. “The strength of a mark is a factual determination of
the mark’s distinctiveness.” Bliss Collection, LLC v. Latham Cos., LLC, 82 F.4th 499, 509 (6th
Cir. 2023) (quoting Frisch's Rest., Inc. v. Shoney's Inc., 759 F.2d 1261, 1264 (6th Cir. 1985)). As
discussed above in Section III. a.1., BGCF has alleged facts indicating its descriptive mark has
acquired secondary meaning. BGCF alleges that the Affiliate Fund has functioned continuously
for more than 20 years, utilizing its trademark throughout in print materials and on its web page
and receiving donations from individual and organizational donors from several states. See DE 1
at ¶ 22. Second, BGCF has alleged strong relatedness between the Affiliate Fund and MCCF, Inc.,
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as they are both charitable organizations established to benefit Magoffin County, compare DE 1-
1 at 1, with DE 6-3 at 3 , and would be direct competitors in an overlapping sphere, including
potentially for charitable donations .3 See Bliss , 82 F.4th at 511. Third, and importantly, the
similarity of the marks is beyond debate —Defendants’ MCCF, Inc. is identical to BGCF’s
disputed mark, with the trivial addition of the mandatory corporate identifier. Fourth, BGCF
admits that there is no evidence of actual confusion at this stage , but “[d]ue to the difficulty of
securing evidence of actual confusion, a lack of such evidence is rarely significant[.]” Daddy’s
Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr ., 109 F.3d 275, 284 (6th Cir. 1997).
The fifth factor, marketing channels used, considers “how and to whom the respective goods or
services of the parties are sold.” Champions Golf, 78 F.3d at 1120. BGCF notes that both parties
use local fundraising and donor solicitation within or concerning the same community. See DE 8
at 6. The sixth factor concerns “how carefully a consumer selects a particular good or service[.]”
Bliss, 82 F.4th at 513 (citing Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 796-97 (6th Cir. 2015)).
Relevantly, BGCF alleges that “deception or misleading has been material in that it is likely to
influence giving decision of donors and result in the loss of goodwill and trust among partner
organizations, community stakeholders, and service recipients.” DE 1 at ¶ 44. Relating to the
seventh factor, intent in selecting marks, BGCF alleges that Defendants intended to “utilize the
goodwill” of the Affiliate Fund “for [Salyer’s] own profit.” Id. at ¶ 2. The eighth factor, likelihood
of expansion, looks at whether either party may expand to compete with the other or be marketed
to the same consumers. See Bliss, 82 F.4th at 514. BGCF alleged that Defendants “intended and
intends to divert estate assets or other donations from [BGCF].” DE 1 at ¶ 2. Indeed, Plaintiff
alleges that such diversion in fact has occurred. See id. at ¶¶ 30-31.
3 The Court cannot properly consider the Salyer affidavit in this context.
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The balance of the Frisch’s factors weighs easily, certainly plausibly, in favor of finding a
likelihood of confusion. Thus, the Court finds that BGCF has p roperly alleged a likelihood of
confusion.
3. BGCF has alleged sufficient use in commerce
Defendants assert that, to this point, they have not taken an action that constitutes use in
commerce. See DE 6-1 at 7-8. The Lanham Act defines “use in commerce” as “the bona fide use
of a mark in the ordinary course of trade[.]” 15 U.S.C. § 1127. The Act further explains that a
service is used in commerce “when it is used or displayed in the sale or advertising of services and
the services are rendered in commerce[.]” Id. In other words, the good or service must have been
“used in a way which is typical in a particular industry[.]” NetJets, 602 F. App’x at 245 (internal
quotations omitted).
BGCF contends that the “use” element is met through Defendants’ imminent use of the
mark and their intent to “stand in the shoes” of the Affiliate Fund , as evidenced by Defendants
efforts to gain control of funds that would otherwise inure to BGCF and the Affiliate Fund.4 DE
8 at 7-8. On this point, BGCF alleges in its Complaint that Salyer attempted to bring proceeds of
an investment fund under the control of Mr. Patrick’s Estate, even though there was a beneficiary
designation directing that those proceeds were payable to BGCF upon Mr. Patrick’s death. See
DE 1 at ¶ 30. Additionally, BGCF alleges that Salyer moved for and obtained an order from
Magoffin District Court directing an investment company to pay account proceeds to the Estate by
4 BGCF also contends that Defendants have begun using the disputed mark in commerce by maintaining a
website, publishing print materials, soliciting donations, and managing those contributions and expectancy
interests. See DE 8 at 7 n.4 (citing DE 1 at ¶¶ 21-24, 29-34, 42-45, 53-58). The Court rejects much of this
argument because the paragraphs of the Complaint BGCF cites in support of this argument largely do not
actually make those allegations. The diversion particulars in ¶¶ 30-31 are important, though, because they
represent actual diversion of assets allegedly meant for the Affiliate Fund by the incorporator of the
allegedly infringing new entity. Those allegations are of significance in moving plausibly from speculative
to actual or imminent harm.
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representing that an MCCF fund does not exist. See id. at ¶ 31. The funds allegedly should have
fallen within Affiliate Fund control.
The Lanham Act grants district courts the “power to grant injunctions…to prevent a
violation under subsection (a), (c), or (d), of section 1125 of this title.” 15 U.S.C. § 1116(a).
BGCF requests such injunctive relief. See DE 1 at ¶ 69. Based on the alleged imminence of
Defendants’ use of the disputed mark and Defendants’ plain position that MCCF, Inc. will replace
the Affiliate Fund under the dissolution mechanics, along with the actions already taken by Salyer
to divert funds from BGCF, the Court finds that BGCF has sufficiently pleaded use or imminent
use of the disputed trademark to survive Defendants’ motion. Indeed, Defendants’ expressed aim
is diversion of all proceeds from the Affiliate Fund, with that fund ceasing to exist. See Essie
Cosmetics, Ltd. v. Dae Do Int’l , Ltd., 808 F. Supp. 952, 957 (E.D.N.Y. 1992) (explaining that a
court may grant injunctive relief before actual use in commerce where such use is “imminent and
impending”) (citing J. Thomas McCarthy, 2 Trademarks and Unfair Competition, § 30.5 at 470
(2d ed. 1984) ); Fund of Funds, Ltd. v. First Am. Fund of Funds, Inc. , 274 F. Supp. 517, 527
(S.D.N.Y. 1967) (“To postpone the granting of relief until actual injury could be proved would be
to deprive the equitable remedy of its most valuable trait— the dispensation of preventive justice.
The court may properly presume that the confusion of source will be injurious and therefore wield
its injunctive powers with dispatch to prevent the infliction of harm.”) (internal citations omitted).
The Court rejects th e argument that the case should be dismissed because Plaintiff has failed to
concretely allege use or imminent use of the protected mark. Plaintiff’s well -pleaded facts, and
reasonable inferences from them, plausibly support liability under the Act.
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b. State Law Claims
Defendants also move to dismiss BGCF’s claims of tortious interference with a prospective
advantage (Count II), breach of fiduciary duty (Count III), and breach of contract (Count IV). See
DE 6-1 at 10 -11. Defendants’ basis for dismissing the state law claims is clearly inadequate to
obtain the relief sought ; Defendants do not cite any legal authority as grounds for dismissal, nor
do they identify the relevant elements of the claims that BGCF failed to adequately plead. See id.
Instead, Defendants merely reiterate that they are partially through the disaffiliation proces s, but
they do not explain how this is grounds for dismissing the state law claims. “[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived. It is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to…put flesh on its bone s.” McPherson v. Kelsey, 125 F.3d 989, 995 -96 (6th
Cir. 1997) (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory
Comm'n, 59 F.3d 284, 293 -94 (1st Cir. 1995)). The Court finds Defendants’ argument for
dismissing Counts II through IV undeveloped and will therefore deny the motion as to those
claims. See LR 7.1(a) (“A motion must state with particularity the grounds for the motion, the
relief sought, and the legal argument necessary to support it.”).
IV. Conclusion
For the foregoing reasons, the Court DENIES DE 6, Defendants’ motion. Per DE 4, Judge
Atkins may now proceed with building a schedule and managing the case.
This the 8th day of June, 2026.
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