United States Court of Appeals For the First Circuit
No. 24-1188
ASOCIACIÓN DE DETALLISTAS DE GASOLINA DE PUERTO RICO, INC.; A&E SERVICE STATION, INC.; ANTONIO A. JUAN LEON; BAJURAS DEVELOPMENT, INC.; SAMI DAVIS SULEIMAN ABDELMAJED; Q&P FUEL MANAGEMENT, LLC; MEGA PUMA 129, INC.; MEGA JL, INC.; L&F SERVICE STATION, INC.; JOSÉ J. ARROYO NOVOA, d/b/a Garage Arroyo; WCL CORPORATION; MARACAIBO PETROLEUM, CORP.; ORLANDO GONZÁLEZ HERNÁNDEZ, d/b/a Raholisa Service Station; MATILDE COLLAZO VIERA, d/b/a Green Valley Service Station; JOSÉ A. COLÓN ALONSO, d/b/a Mobil Orocovis, Shell Utuado, and Gulf Utuado; ONCE 11 CORP.; JANET TORRES PAGÁN, d/b/a Gulf Aibonito; R2 BUSINESS, INC.; LUIS C. CRESPO ORTIZ, d/b/a Apolo Texaco; COOPERATIVA GASOLINERA Y SERVICIOS BUENA VISTA,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF PUERTO RICO, represented by its Governor Hon. Jenniffer González-Colón; HON. JANET PARRA MERCADO, as Interim Attorney General of the Commonwealth of Puerto Rico; HON. VALERIE RODRÍGUEZ ERAZO, as Secretary of the Department of Consumer Affairs of Puerto Rico,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
Before
Public officers' successors have been automatically substituted as parties pursuant to Federal Rules of Appellate Procedure 43(c)(2). Barron, Chief Judge, Gelpí and Montecalvo, Circuit Judges.
Andrés C. Gorbea-Del Valle for appellants.
Omar J. Andino-Figueroa, Deputy Solicitor General, with whom Fernando Figueroa-Santiago, Solicitor General of Puerto Rico, and Mariola Abreu-Acevedo, Assistant Solicitor General, were on brief, for appellees.
May 29, 2025 GELPÍ, Circuit Judge. Plaintiffs-Appellants are
organizations and individuals who own or operate gasoline service
stations throughout Puerto Rico, as well as a nonprofit corporation
that represents more than 450 such businesses. To reduce the
transaction fees they owed to card companies, Appellants
incentivized consumers to pay in cash by offering two different
prices: a higher posted price for consumers using credit or debit
cards and a lower price for those paying with cash. In 2013,
however, Puerto Rico's legislature enacted Law 152-2013, which
amended Law 150-2008 by removing a provision that expressly
permitted merchants to offer discounts to consumers who paid for
goods and services in cash. Since then, Appellants have ceased
offering the lower posted price because of the threat of fines and
criminal prosecution. Appellants sued the Commonwealth of Puerto
Rico ("the Commonwealth")1 to enjoin Law 150, arguing first that
it is preempted by federal law and second that it is
unconstitutionally vague. The district court rejected those
arguments and granted the Commonwealth's motion to dismiss for
failure to state a claim. Appellants challenge that ruling on
appeal, advancing the same arguments.
1 The Commonwealth is represented by the following individuals in their official capacity: Hon. Jenniffer González-Colón, Governor of Puerto Rico; Hon. Janet Parra Mercado, Interim Attorney General of Puerto Rico; and Hon. Valerie Rodríguez Erazo, Secretary of the Department of Consumer Affairs of Puerto Rico ("DACO," by its Spanish acronym).
- 3 - For the reasons stated below, we affirm.
I. BACKGROUND
We begin with a summary of the facts, taking "the
complaint's well-pleaded facts as true" and drawing "all
reasonable inferences in [Appellants'] favor." Frese v. Formella,
53 F.4th 1, 5 (1st Cir. 2022) (quoting Barchock v. CVS Health
Corp., 886 F.3d 43, 48 (1st Cir. 2018)).
A. Relevant Statutes
To place Appellants' preemption argument "in context, we
provide a brief overview of applicable federal and state regulation
and then trace the interaction of the two schemes." Grant's
Dairy-Me., LLC. v. Comm'r of Me. Dep't of Agric., Food & Rural
Res., 232 F.3d 8, 11 (1st Cir. 2000).
i. Puerto Rico Regulation
Merchants generally pay a transaction fee to the card
issuer every time a consumer uses a debit or credit card to pay
for their goods and services. This "swipe fee," as it is commonly
known within the credit card industry, typically ranges from 2% to
3% of the transaction total. To reduce the impact of the "swipe
fee" expense, merchants sought to discourage customers from paying
with a debit or credit card by charging a surcharge for card
transactions or offering a discount for paying with cash.
The Puerto Rico legislature enacted Law 150-2008 ("Law
150") in 2008. P.R. Laws Ann. tit. 10, § 11 (2008). Article 1
- 4 - provided, in relevant part, "[n]o merchant may impose a surcharge
on a consumer who chooses to use a credit card instead of
cash . . . ." Id. Article 2 stated, in relevant part, "[t]he
merchant may, however, offer discounts for the purpose of promoting
the payment in cash . . . ." Id. While Article 1 prohibited
merchants from imposing credit card surcharges, Article 2
recognized a merchants' right to provide discounts to consumers
who choose to pay for services in cash. Id. According to Article
4, merchants in violation of Law 150 "shall be penalized with" a
fine of up to five hundred dollars ($500) or up to six months in
prison, or both. Id.
Five years later, in 2013, the Puerto Rico legislature
amended Law 150 with the enactment of Law 152-2013 ("Law 152").
P.R. Laws Ann. tit. 10, § 11 (2013). That law eliminated Article
2 of Law 150. Id. In repealing Article 2, the Puerto Rico
legislature stated that its purpose was "to eliminate the duality
and coexistence of parallel markets" and that it was fulfilling
its duty to "protect the weakest party in a commercial transaction,
the consumer." Id.
Pursuant to Law 152's amendment to Law 150, DACO
promulgated Administrative Order 2014-002 ("Order 2014-002").
Aff., Order 2014-002 (Jan. 21, 2014),
https://www.daco.pr.gov/orden/orden-2014-002/
- 5 - [https://perma.cc/7EUM-4CR8].2 That order interpreted Law 152 as
having eliminated "the use of discounts as an incentive to pay in
cash" and, in turn, repealed or amended previous DACO orders
pursuant to that interpretation. Id. § II.
Appellants represent more than 450 retailers who own or
operate over 600 gasoline stations in Puerto Rico. The "swipe
fee" is the fourth largest business expense for most Appellants.
To encourage cash payments, Appellants displayed dual prices for
their goods and services: one price for costumers paying with a
debit or credit card and a discounted price for those paying in
cash. Appellants subsequently sued the Commonwealth to prevent
the enforcement of Law 150, as amended by Law 152.3
ii. Federal Regulation
a. TILA and the CDA
In 1968, Congress passed the Truth in Lending Act
("TILA"), Pub. L. No. 90-321, 82 Stat. 146 (1968) (codified as
amended at 15 U.S.C. § 1601 et seq.), to promote the "informed use
of credit" by consumers and, among other things, "assure a
2 Appellants have filed certified translations of all supporting materials originally produced in Spanish as required by the Jones Act, 48 U.S.C. § 864. See United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002) ("It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English."). 3 Henceforth, we refer to Law 150 to mean Law 150 as amended by Law 152 unless otherwise noted.
- 6 - meaningful disclosure of credit terms so that the consumer will be
able to compare more readily the various credit terms available to
him and avoid the uninformed use of credit." Id. § 102.
Six years later, Congress amended the TILA through the
Fair Credit Billing Act, Pub. L. No. 93-495, 88 Stat. 1511 (1974)
(codified as amended at 15 U.S.C. § 1601 et seq.), to continue
protecting "consumer[s] against inaccurate and unfair credit
billing and credit card practices," id. § 102. A key provision of
the Fair Credit Billing Act provided that "card issuer[s] may not,
by contract or otherwise, prohibit any [seller other than the card
issuer] from offering a discount to a cardholder to induce the
cardholder to pay by cash, check, or similar means rather than use
a credit card." Id. sec. 306, § 167(a). The TILA defines "card
issuer" as "any person who issues a credit card, or the agent of
such person with respect to such card." 15 U.S.C. § 1602(o).
Later, in 1981, Congress amended the TILA once again
with the passage of the Cash Discount Act ("CDA"), Pub. L. No.
97-25, 95 Stat. 144 (1981). The CDA's stated purpose was "[t]o
amend [the TILA] to encourage cash discounts, and for other
purposes." Id. As relevant to this case, the CDA provides that
any discount sellers offered to induce consumers to pay in cash
does not "constitute a finance charge" if the discount is "offered
to all prospective buyers and its availability is disclosed clearly
and conspicuously." Id. § 101(b) (codified as amended at 15 U.S.C.
- 7 - § 1666f(b)). A "finance charge," as defined in the TILA, is "the
sum of all charges, payable directly or indirectly by the person
to whom the credit is extended, and imposed directly or indirectly
by the creditor as an incident to the extension of credit." 15
U.S.C. § 1605(a). Section 1666f(b) complemented other sections
throughout the TILA which specify finance charges, among things
like annual percentage rate, as information that creditors must
"clearly and conspicuously" disclose to consumers. Id. § 1632(a);
see also id. §§ 1637, 1638 (disclosure requirements).
b. Durbin Amendment
In 2010, Congress passed the Dodd-Frank Wall Street
Reform and Consumer Protection Act ("Dodd-Frank"), Pub. L. No.
111-203, 124 Stat. 1376 (2010), to enhance accountability and
transparency in the nation's financial system. As part of
Dodd-Frank, Congress also passed the Durbin Amendment, which
modified the Electronic Fund Transfer Act, Pub. L. 95-630, 92 Stat.
3641 (1978) (codified as amended at 15 U.S.C. 1693 et seq.).
The Durbin Amendment contains two key provisions related
to cash discounts. The first provides that a "payment card network
shall not . . . inhibit the ability of any person to provide a
discount or in-kind incentive for payment by the use of cash." 15
U.S.C. § 1693o-2(b)(2)(A). The second provides that "the network
may not penalize any person for the providing of a discount that
is in compliance with Federal law and applicable State law." Id.
- 8 - § 1693o-2(b)(2)(B). The statute defines "payment card network" as
"an entity that . . . provides the proprietary services,
infrastructure, and software that route information and data to
conduct debit card or credit card transaction authorization,
clearance, and settlement." Id. § 1693o-2(c)(11).
B. Procedural History
Appellants first challenged Law 150 and Order 2014-002
in federal court on January 30, 2014. Asociación de Detallistas
de Gasolina de P.R., Inc. v. Commonwealth of Puerto Rico, 18
F.Supp.3d 99 (D.P.R. 2014). At the time, Appellants argued that
Law 150 was preempted by federal law and unconstitutionally vague
under constitutional due process. Id. at 100. The Commonwealth
moved to dismiss, arguing that the court should abstain from
considering Appellants' vagueness claim under the Pullman
abstention doctrine, which advises a federal court to abstain from
considering a federal constitutional claim when it is based on an
unsettled question of state law. Id. at 101 (citing Texas v.
Pullman, 312 U.S. 496 (1941)). The district court agreed with the
Commonwealth, finding the intent of the Puerto Rico legislature to
be unclear "regarding the offering of cash discounts in repealing
Article 2" since its stated goal in doing so "was to correct
pricing disparity but also 'to protect the weakest party in a
commercial transaction, the consumer.'" Id. at 103 (quoting P.R.
Laws Ann. tit. 10, § 11 (2013)). So the district court concluded
- 9 - that the Puerto Rico legislature's motive in amending Law 150 "must
be subject to the interpretation of the state courts, as a federal
judge should be hard-pressed to trailblaze undetermined state law,
especially declaring the same unconstitutional." Id.
Accordingly, the district court dismissed Appellants' claims,
without prejudice. Id. at 105.
Following the district court's ruling, Appellants filed
suit before the Puerto Rico Court of First Instance. See
Asociación de Detallistas de Gasolina de P.R., Inc., et al. v.
Estado Libre Asociado de P.R., et al., No. KAC2014-0539, 2016 WL
6471328, at *1 (P.R. Cir., Sept. 30, 2016), cert. denied, P.R.
Supreme Court, No. CC-2017-0239. That court agreed with
Appellants, holding that Law 150 did not prohibit the use of
discounts as incentives for cash payments, if Appellants complied
with the applicable signage requirements and/or regulations. Id.
Accordingly, the court enjoined DACO from "impeding gasoline
retailers from offering discounts on the price of gasoline when
the payment method is in cash." Id. However, the Puerto Rico
Court of Appeals reversed said judgment on September 30, 2016,
finding that the Puerto Rico legislature "clearly intended to
eliminate the possibility that two different prices for the same
good or service could be imposed based solely on the method of
- 10 - payment." Id., at *6. The Supreme Court of Puerto Rico declined
to consider Appellants' appeal.
On April 11, 2023, Appellants renewed their federal suit
to halt the enforcement of Law 150. Before the district court,
Appellants argued that the CDA and the Durbin Amendment to
Dodd-Frank recognized the right of retailers to offer discounts to
customers who decide to pay for their products and services in
cash. Thus, they argued, Law 150 presents an obstacle to
accomplish the objectives of both federal laws and is accordingly
preempted. The Commonwealth, in turn, moved to dismiss the
complaint, contending that no conflict preemption exists between
the CDA and the Durbin Amendment, on the one hand, and Law 150, on
the other hand, since those federal statutes only regulate the
relationship between card issuers and retailers and the
relationship between payment card networks and retailers, not the
relationship between retailers and consumers.
The district court sided with the Commonwealth,
concluding that the CDA and the Durbin Amendment do not preempt
Law 150. In so ruling, the district court noted that although the
CDA's stated purpose is to "encourage cash discounts," a purpose
statement cannot override a statute's operative language.
Regarding the Durbin Amendment, the district court noted that its
relevant provisions are directed at "payment card networks," not
the states. Accordingly, the district court held that "neither
- 11 - the plain language nor the objective of either the CDA or Durbin
Amendment support[ed] Plaintiffs' theory of conflict preemption as
to Law 150." The district court further declined to address
Appellants' constitutional vagueness argument, finding that the
complaint did not allege that Law 150 is unconstitutionally vague.
In accordance with these findings, the district court granted the
Commonwealth's motion to dismiss. Appellants timely appealed the
district court's decision. This court has jurisdiction pursuant
to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
"We review de novo a dismissal pursuant to Rule
12(b)(6)." Thornton v. Ipsen Biopharmaceuticals, Inc., 126 F.4th
76, 80 (1st Cir. 2025) (citing Lowe v. Mills, 68 F.4th 706, 713
(1st Cir. 2023)). When reviewing a district court's grant of a
motion to dismiss for failure to state a claim, "we may affirm on
any independently sufficient grounds made manifest by the record."
Bower v. Egyptair Airlines Co., 731 F.3d 85, 92 (1st Cir. 2013).
III. DISCUSSION
Appellants press two arguments on appeal. First, they
argue that Law 150 frustrates the purposes of the CDA and the
Durbin Amendment: namely, to encourage cash discounts by
conferring upon merchants a right to offer discounts for cash
payments. Because Puerto Rico law prohibits a practice that
federal law encourages, Appellants assert, Law 150 conflicts with
- 12 - federal law and thus is preempted. Second, Appellants argue that
Law 150 is unconstitutionally vague because it is not clear on the
legality of cash payments. We first consider their preemption
argument.
A. Preemption
The Supremacy Clause of the U.S. Constitution bestows
upon Congress the power to preempt state laws. See U.S. Const.
art. VI, cl. 2 ("This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land . . . ."); see
also Me. Forest Prods. Council v. Cormier, 51 F.4th 1, 6 (1st Cir.
2022). "For preemption purposes, the laws of Puerto Rico are the
functional equivalent of state laws." Antilles Cement Corp. v.
Fortuño, 670 F.3d 310, 323 (1st Cir. 2012) (citing P.R. Dep't of
Consumer Affs. v. Isla Petroleum Corp., 485 U.S. 495, 499 (1988)).
Preemption can be "expressed or implied." Medicaid &
Medicare Advantage Prods. Ass'n of P.R., Inc. v. Emanuelli
Hernández, 58 F.4th 5, 11 (1st Cir. 2023) (quoting Gade v. Nat'l
Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992)). Implied
preemption can take one of two forms: field preemption or obstacle
preemption. Obstacle preemption occurs "either when compliance
with both state and federal regulations is impossible or when state
law interposes an obstacle to the achievement of Congress's
discernible objectives." Grant's Dairy-Me., LLC, 232 F.3d at 15
(citing Gade, 505 U.S. at 98). "Cases of obstacle preemption (like
- 13 - all forms of preemption) fit into the following mold: 'Congress
enacts a law that imposes restrictions or confers rights on private
actors; a state law confers rights or imposes restrictions that
conflict with the federal law; and therefore the federal law takes
precedence and the state law is preempted.'" Cormier, 51 F.4th at
6 (quoting Murphy v. Nat'l Collegiate Athletic Ass'n, 584 U.S.
453, 477 (2018)). "What is a sufficient obstacle is a matter of
judgment, to be informed by examining the federal statute as a
whole and identifying its purpose and intended effects . . . ."
Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000)
(emphasis added).
Here, Appellants argue only that Law 150 frustrates the
objectives of both the CDA and the Durbin Amendment, which in
Appellants' view is to encourage discounts for cash payments.
Thus, only obstacle preemption is implicated here. With that
framework in mind, we now turn to the text and purpose of the
federal statutes, beginning with the CDA.
i. CDA
Appellants first argue that the purposes of the CDA and
Law 150 are obviously in conflict, pointing to the expressly stated
purpose of the CDA as proof of Congress's unambiguous intent to
preempt any laws that prohibits discounts for cash payments. See
Cash Discount Act, Pub. L. No. 97-25, 95 Stat. 144, 144 (1981)
("To amend the Truth in Lending Act to encourage cash discounts,
- 14 - and for other purposes." (emphasis added)). But our inquiry into
congressional intent does not end with a statute's statement of
purpose. See Sturgeon v. Frost, 587 U.S. 28, 56–57 (2019)
(explaining that statements of purpose "cannot override [a
statute's] operative language" (alteration in the original)
(quoting A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 220 (2012)). Thus, we must analyze the operative
language of the statute.
The CDA, by amending the TILA, seeks to "encourage cash
discounts" by, among other things, clarifying that any discount
sellers offered to induce consumers to pay in cash would not
"constitute a finance charge" if certain conditions were met. 15
U.S.C. § 1666f(b). The TILA requires creditors to disclose the
"finance charge" to consumers. Id. § 1632(a); see also id.
§§ 1637, 1638 (disclosure requirements). By amending the TILA to
allow any cash discount to be excluded from the "finance charge"
if "such discount is offered to all prospective buyers and its
availability is disclosed clearly and conspicuously," Cash
Discount Act, § 101, the CDA relieves credit card issuers of the
obligation to disclose -- as part of the "finance charge" -- any
price differential between the cash price and the credit card price
that results from such cash discounts. The CDA thereby allows
- 15 - sellers to offer cash discounts that they previously would not
have been able to offer. See S. Rep. No. 97-23, at 1-2 (1981).
Read in context and in relevant part, it is evident that
Congress intended for the TILA, the statute which the CDA amended,
to regulate the conduct of credit card issuers and entities like
them with respect to cash discounts -- not merchants, states, or
territories. Congress's intent is evidenced by section 1666f(a),
which clearly identifies card issuers, and section 1666f(b), which
regulates what is and is not a finance charge, a matter most
relevant to credit issuers. As the Commonwealth is not a credit
card issuer as defined in section 1602(o), nothing in the TILA (or
the CDA) prevents it from prohibiting merchants to offer discounts
to consumers who pay in cash. Hence, insofar as those provisions
are relevant to assessing Congress's objectives in enacting the
CDA, they at most provide support for the conclusion that
Congress's purpose was to encourage cash discounts by regulating
the conduct of card issuers. And Law 150 does not pose an obstacle
to the accomplishment of that objective.
Appellants also aver that the CDA creates a right for
merchants to offer discounts in exchange for cash payments. If
so, Law 150 would be clearly preempted by denying a right conferred
in federal law. Appellants point to Section 1666f(b) of the TILA,
as amended by section 101(b) of the CDA, to support their claim.
That section of the CDA, however, simply clarified that any
- 16 - discount sellers offered to induce consumers to pay in cash would
not "constitute a finance charge" if certain conditions were met.
Cash Discount Act, § 101(b). Thus, the operative language of the
CDA does not support Appellants' contention that it conferred upon
merchants an absolute right to offer cash discounts. Since the
CDA did not create such a right, the federal statute can coexist
with Law 150. For these reasons, the CDA does not preempt Law
150.
ii. Durbin Amendment
Next, we consider whether the Durbin Amendment preempts
Law 150, beginning with its text. The Durbin Amendment provides
that "[a] payment card network shall not . . . inhibit the ability
of any person to provide a discount or in-kind incentive for
payment by the use of cash." 15 U.S.C. § 1693o-2(b)(2)(A)
(emphasis added). A "payment card network" is statutorily defined
as "an entity that . . . provides the proprietary services,
infrastructure, and software that route information and data to
clearance, and settlement." 15 U.S.C. § 1693o-2(c)(11). The
operative statutory language thus makes clear that Congress did
not intend for the Durbin Amendment to grant merchants an absolute
right to offer cash discounts. Rather, Congress intended to
regulate the conduct of payment card networks -- i.e., to prohibit
such networks from preventing merchants from offering a discounted
- 17 - price to customers who paid in cash for their services. Because
the text of the statute is clear as to the identity of the party
it is meant to regulate, that is where our inquiry ends. See Nat'l
Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 127 (2018)
(affirming that our inquiry begins and ends with the statutory
text if a provision is unambiguous). The Durbin Amendment does
not preempt Law 150.
Still, Appellants insist that Law 150 undermines the
"objective and purpose" of the Durbin Amendment. Appellants point
to statements from Senator Durbin to suggest that Congress adopted
the Durbin Amendment to "give small businesses and merchants and
their customers across America a real chance in the fight against
the outrageously high swipe fees charged by Visa and Mastercard
Credit card companies." 156 Cong. Rec. S4977 (daily ed. June 16,
2010) (statement of Sen. Durbin); 156 Cong. Rec. S4839 (daily ed.
June 10, 2010) (statement of Sen. Durbin). Inasmuch as Law 150
prohibits cash discounts, Appellants argue, the law constitutes an
obstacle to accomplishing Congress's objectives. But, as
explained above, the Durbin Amendment regulates the conduct of
credit card payment networks, not the states. Thus, we see no
basis to conclude that the Durbin Amendment evinces Congress's
intent to encourage cash discounts by preempting any state
- 18 - legislation that restricts the ability of merchants to offer such
discounts.
B. Constitutional Vagueness
Last, Appellants argue that Law 150 is
unconstitutionally vague in violation of constitutional due
process. The district court declined to consider this argument,
however, concluding that Appellants failed to properly allege in
its complaint that Law 150 was unconstitutionally vague.
Appellants now contend that they plausibly pleaded a
constitutional vagueness argument in paragraph 41 of the
complaint. Paragraph 41 asserts in relevant part that "Law
152-2013 did not prohibit retailers from offering discounts to
consumers who chose to pay in cash; the law simply eliminated the
article that established said right." Such a pleading is
insufficient to preserve the issue on appeal. As we have repeated
with regularity, "litigants must spell out their legal theories
face-up and squarely in the trial court" to preserve the issue.
Massó-Torrellas v. Mun. of Toa Alta, 845 F.3d 461, 466 (1st Cir.
2017) (quoting Thomas v. Rhode Island, 542 F.3d 944, 949 (1st Cir.
2008)). Because Appellants did not properly plead a vagueness
claim in their complaint, that claim is deemed unpreserved for
purposes of appellate review.
- 19 - IV. CONCLUSION
For the foregoing reasons, we affirm the district
court's grant of the Commonwealth's motion to dismiss.
- 20 -