Washington v. Flixbus, Inc.

• Court: District Court, S.D. California
• Decided: June 5, 2025
• Docket: 3:25-cv-00212
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CHARLES WASHINGTON, Case No.: 3:25-cv-00212-H-MSB

11 Plaintiff, ORDER GRANTING DEFENDANT’S 12 v. MOTION TO DISMISS

13 FLIXBUS, INC., [Doc. No. 6] 14 Defendant. 15 On April 4, 2025, Defendant Flixbus, Inc. filed a motion to dismiss Plaintiff Charles 16 Washington’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 17 12(b)(6) on the grounds that Plaintiff lacks standing, Plaintiff’s claims are preempted, and 18 the Complaint fails to state a claim upon which relief can be granted. (Doc. No. 6.) On 19 April 21, 2025, Plaintiff filed a response in opposition to Defendant’s motion to dismiss. 20 (Doc. No. 7.) Defendant filed a reply on April 28, 2025. (Doc. No. 9.) On June 2, 2025, 21 the Court took the matter under submission. (Doc. No. 11.) For the reasons below, the 22 Court grants Defendant’s motion to dismiss without leave to amend. 23 BACKGROUND 24 In this putative class action, Defendant Flixbux, Inc. is a passenger bus 25 transportation company and Plaintiff Charles Washington is an individual who used 26 Defendant’s website to book a bus ticket. (Compl., Doc. No 1 ¶¶ 2, 7.) 27 Travelers can book bus tickets using Defendant’s website, www.flixbus.com. 28 1 (Compl., Doc. No 1 ¶¶ 2, 32.) Defendant integrates the “Facebook Tracking Pixel” into its 2 website. (Compl., Doc. No 1 ¶ 2.) The Facebook Tracking Pixel is one of Meta Platforms, 3 Inc.’s (“Facebook”) business tools, which are “bits of code that advertisers can integrate 4 into their website, mobile applications, and servers, thereby enabling Facebook to intercept 5 and collect user activity on those platforms.” (Compl., Doc. No 1 ¶¶ 27, 29.) When a user 6 accesses a website that integrates the Facebook Tracking Pixel, Facebook’s software script 7 directs the user’s browser to send a separate message to Facebook’s servers containing 8 certain data the Pixel is configured to collect. (Compl., Doc. No 1 ¶ 29.) The Pixel uses 9 cookies to pair event data like dates and locations of travel with personally identifiable 10 information so it can later retarget consumers with advertising on Facebook. (Compl., Doc. 11 No 1 ¶¶ 33, 44, 46.) By integrating the Pixel into its website, Defendant assists Facebook 12 with pairing the identifiers with event data. (Compl., Doc. No 1 ¶ 33, 47.) Plaintiff alleges 13 that Defendant does not provide reasonably conspicuous notice to its users of its terms and 14 conditions or privacy policy. (Compl., Doc. No 1 ¶¶ 49-57.) 15 In or around September 2024, Plaintiff visited Defendant’s website to book a bus 16 ticket from San Diego to Los Angeles. (Compl., Doc. No 1 ¶ 7.) Unbeknownst to Plaintiff 17 and allegedly without his consent, Defendant assisted Facebook with intercepting his 18 communications, including communications that contained his personally identifiable 19 information and details regarding his private travel itinerary. (Compl., Doc. No 1 ¶¶ 7-8.) 20 Such details included his departure and return date, the origin and destination cities, and 21 the number of travelers in his party. (Compl., Doc. No 1 ¶ 7.) 22 Based on these allegations, Plaintiff asserts claims under the California Information 23 Privacy Act (“CIPA”) and invasion of privacy under the California Constitution. (Compl., 24 Doc. No. 1 ¶¶ 67-87.) By the present motion, Defendant moves to dismiss Plaintiff’s 25 complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) 26 on the grounds that (a) the Court lacks subject matter jurisdiction because Plaintiff has no 27 Article III standing, (b) the Interstate Commerce Commission Termination Act, 49 U.S.C. 28 § 14501, expressly preempts all of Plaintiff’s claims, and (c) the Complaint fails to state a 1 claim upon which relief can be granted. (Doc. No. 6.) 2 DISCUSSION 3 I. Standard for Dismissal Pursuant to Rule 12(b)(6) 4 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 5 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 6 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 7 646 F.3d 1240, 1241 (9th Cir. 2011) (citing Navarro v. Block, 250 F.3d 729, 732 (9th 8 Cir. 2001)). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading that states a 9 claim for relief contain “a short and plain statement of the claim showing that the pleader 10 is entitled to relief.” The function of this pleading requirement is to “‘give the defendant 11 fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. 12 v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 14 facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a 18 formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting 19 Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, 20 supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions 21 can provide the framework of a complaint, they must be supported by factual allegations.” 22 Id. at 679. Accordingly, dismissal for failure to state a claim is proper where the claim 23 “lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 24 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see L.A. 25 Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). 26 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must “accept the 27 factual allegations of the complaint as true and construe them in the light most favorable 28 to the plaintiff.” L.A. Lakers, 869 F.3d at 800 (quoting AE ex rel. Hernandez v. Cnty. of 1 Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). But a court need not accept “legal conclusions” 2 as true. Iqbal, 556 U.S. at 678. “Further, it is improper for a court to assume the claimant 3 “can prove facts which it has not alleged or that the defendants have violated the . . . laws 4 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 5 Council of Carpenters, 459 U.S. 519, 526 (1983). In addition, a court may consider 6 documents incorporated into the complaint by reference and items that are proper subjects 7 of judicial notice. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). 8 If the court dismisses a complaint for failure to state a claim, it must then determine whether 9 to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). “A 10 district court should grant leave to amend . . . unless it determines that the pleading could 11 not possibly be cured by the allegation of other facts.” Id. (citation omitted). 12 II. Analysis 13 Defendant argues Plaintiff’s claims under CIPA and the California Constitution are 14 barred because Plaintiff consented to Defendant’s Privacy Policy and Terms and 15 Conditions, which disclose the data practices he now challenges. (Doc. No. 6-1 at 11-14.) 16 Plaintiff argues he did not consent because Defendant did not provide reasonably 17 conspicuous notice of its policies. (Compl., Doc. No. 1 ¶¶ 49-57; Doc. No. 7 at 10-15.) 18 Consent is a bar to claims under CIPA. See Smith v. Facebook, Inc., 262 F. Supp. 19 3d 943, 955 (N.D. Cal. 2017) (holding plaintiffs who consented to tracking activity could 20 not state a claim under CIPA because the statute “imposes liability only for interception 21 ‘without the consent of all parties’”), aff’d, 745 F. App’x 8 (9th Cir. 2018); Reyes v. Educ. 22 Credit Mgmt. Corp., 773 F. App’x 989, 990 n.1 (9th Cir. 2019) (“It appears that, under 23 California law, the plaintiff bringing a CIPA claim has the burden to prove that the 24 defendant lacked consent to record.”). Consent is also a bar to claims for invasion of 25 privacy under the California Constitution. See Smith, 262 F. Supp. 3d at 955; Cal. Civ. 26 Code § 3515 (“A person who consents to an act is not wronged by it.”); Hill v. Nat’l 27 Collegiate Athletic Ass’n, 7 Cal. 4th 1, 26 (1994) (“Moreover, the plaintiff in an invasion 28 of privacy case must have conducted himself or herself in a manner consistent with an 1 actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct 2 a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a 3 defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as 4 to justify tort liability.”); In re Yahoo Mail Litig., 7 F. Supp. 3d at 1037-38 (“The plaintiff 5 in an invasion of privacy action must have conducted himself or herself in a manner 6 consistent with an actual expectation of privacy, i.e., he or she must not have manifested 7 by his or her conduct a voluntary consent to the invasive actions of defendant.”). 8 Here, Plaintiff alleges that he did not consent to the data practices at issue in the 9 complaint. But the Court need not accept that legal conclusion as true. Iqbal, 556 U.S. at 10 678. Turning to the facts alleged in the complaint, Plaintiff alleges that during the checkout 11 process for purchasing a ticket through Defendant’s website, after the purchaser enters their 12 payment method, a checkbox appears next to a “Pay now” button, along with the text: “I 13 declare to have read the Privacy Policy and I agree to the T&C of Booking and T&C of 14 Carriage.” (Compl., Doc. No. 1 ¶ 51, Fig. 5.) This notice includes hyperlinks to the full 15 text of those policies. (Id.) If a purchaser clicks these hyperlinks, they are redirected to a 16 new page to read the linked documents. (Compl., Doc. No. 1 ¶ 53.) This type of disclosure 17 is commonly referred to as a “clickwrap” agreement. See Nguyen v. Barnes & Noble Inc., 18 763 F.3d 1171, 1175-76 (9th Cir. 2014) (defining clickwrap agreements as those “in which 19 website users are required to click on an ‘I agree’ box after being presented with a list of 20 terms and conditions of use”). 21 Plaintiff alleges he purchased a ticket through Defendant’s website, and his 22 complaint shows that the checkout process requires users to assent to Defendant’s terms in 23 order to complete their purchase. (See Compl., Doc. No. 1 ¶¶ 7, 51, Fig. 5.) Plaintiff does 24 not deny that he checked the box indicating his consent to the terms in order to purchase 25 his ticket. Defendant has included copies of its policies with its motion to dismiss. (See 26 Doc. No. 6-2 at 5-34, 37-46.) Plaintiff does not dispute the accuracy of the documents 27 Defendant provided, nor does he argue the Court should not consider them. (See Doc. No. 28 7 at 11-12.) Moreover, Plaintiff has incorporated these documents into his complaint by 1 reference, as the complaint refers extensively to the Privacy Policy and Terms and 2 Conditions, and his claims depend on his allegation that he did not consent to Defendant’s 3 data practices. (Compl., Doc. No. 1 ¶¶ 49-57.) See United States v. Ritchie, 342 F.3d 903, 4 908 (9th Cir. 2003) (“Even if a document is not attached to a complaint, it may be 5 incorporated by reference into a complaint if the plaintiff refers extensively to the 6 document or the document forms the basis of the plaintiff’s claim.”); Reyes, 773 F. App’x 7 at 990 n.1 (“It appears that, under California law, the plaintiff bringing a CIPA claim has 8 the burden to prove that the defendant lacked consent to record.”); Cal. Civ. Code § 3515 9 (“A person who consents to an act is not wronged by it.”). See also Garcia v. Enter. 10 Holdings, Inc., 78 F. Supp. 3d 1125, 1136-37 (N.D. Cal. 2015) (considering privacy policy 11 and terms of service presented by defendants in a motion to dismiss); Coto Settlement, 593 12 F.3d at 1038 (courts may consider documents incorporated by reference on a motion to 13 dismiss). Accordingly, the Court now turns to Defendant’s Privacy Policy and Terms and 14 Conditions to determine whether they disclose the data practices Plaintiff challenges in his 15 complaint. 16 Defendant’s Privacy Policy states that Defendant collects information provided to it, 17 “such as when you purchase a ticket[,]” which may include personal information, 18 demographic data, transaction information, and cookies. (Doc. No. 6-2 at 6-7.) It provides 19 that Defendant may use the information collected for marketing purposes or to provide 20 users personalized content. (Doc. No. 6-2 at 9.) It further states: “Flix and our partners 21 may use cookies, web beacons, embedded scripts, pixels, tags, session replay tools, SDKs, 22 and other identification technologies (‘Tracking Technologies’) in connection with our 23 Services for purposes described in this Privacy Policy.” (Doc. No. 6-2 at 10.) The policy 24 explains that a tracking cookie is “is a small text file that is stored [and remains] on a user’s 25 device” which “help[s] in understanding how you use the Service and enhance your user 26 experience.” (Doc. No. 6-2 at 11.) It explains that tracking pixels are “small graphic 27 images . . . embedded in web pages and email messages” that “may be used, without 28 limitation, to count the number of visitors to the Service, to monitor how Users navigate 1 the Service, and to count content views.” (Id.) It states that Defendant “may disclose the 2 personal information / data” it collects to “marketing partners, research firms, and other 3 service providers.” (Doc. No. 6-2 at 13-14.) It states that it discloses “personal identifiers” 4 and “commercial information” including transaction details to its business partners. (Doc. 5 No. 6-2 at 17-19.) It states that third-party digital businesses “may associate cookies and 6 other tracking technologies that Collect PI about you on our services, or otherwise Collect 7 and Process PI that we make available about you, including digital activity information.” 8 (Doc. No. 6-2 at 26.) 9 Defendant’s Terms and Conditions of Purchase includes a section titled “Consent to 10 Use of Personal Data.” (Doc. No. 6-2 at 46.) The section provides: “Upon booking a ticket 11 for transportation . . . you hereby authorize Flix, Bus Operators, and their affiliates and 12 authorized agents to (i) collect, process, retain and use, and (ii) transfer to third parties, 13 including, but not limited to . . . marketing partners . . . any and all personal data you 14 provide . . . as Flix and/or Bus Operators deem necessary to carry out any and all business 15 purposes related to the program or services being requested and/or in the promotion of 16 other information, goods, and services that may be of interest to you[.]” (Id.) The section 17 states that such business purposes may include “sales and marketing” and “promotions for 18 Flix and/or its affiliates [sic] goods and services and third party goods and services[.]” (Id.) 19 In order for a user’s acceptance of data practices to constitute actual consent, “the 20 disclosures must ‘explicitly notify’ users of the practice at issue.” Lakes v. Ubisoft, Inc., 21 __ F. Supp. 3d __, 2025 WL 1036639, at *5 (N.D. Cal. Apr. 2, 2025) (quoting In re Google 22 Inc., 2013 WL 5423918, at *13 (N.D. Cal. Sept. 26, 2013)). Further, “[t]he disclosures 23 must have only one plausible interpretation for a finding of consent.” Id. (citing In re 24 Facebook, Inc., Consumer Privacy User Profile Litig., 402 F. Supp. 3d 767, 794 (N.D. Cal. 25 2019)). “[I]f a reasonable . . . user could plausibly have interpreted the contract language 26 as not disclosing that [the Defendant] would engage in particular conduct, then [the 27 Defendant] cannot obtain dismissal of a claim about that conduct (at least not based on the 28 issue of consent).” In re Facebook, Inc., 402 F. Supp. 3d at 789-90. Plaintiff argues here 1 that there is no provision in Defendant’s terms that explicitly notifies users that their 2 personal information or travel details would be disclosed to third parties. (Doc. No. 7 at 3 12.) The Court disagrees. As summarized above, Defendant’s Privacy Policy and Terms 4 and Conditions explicitly notify users of the data practices at issue by disclosing the use of 5 cookies and tracking pixels to track certain data and disclose that data to Defendant’s 6 business partners, including marketing partners. Accordingly, a user’s acceptance of 7 Defendant’s terms constitutes actual consent to the data practices Plaintiff challenges. 8 As Defendant notes, Plaintiff does not deny that he checked the box indicating he 9 consented to Defendant’s Terms and Conditions. Instead, he argues that consumers “do 10 not” assent to Defendant’s terms because Defendant “does not provide reasonably 11 conspicuous notice” of its policies and because Defendant “intentionally conceals and 12 limits a consumer’s opportunity to review them prior to booking travel accommodations 13 on its Website.” (Compl., Doc. No. 1 ¶¶ 49-57.) Specifically, he notes that a ten-minute 14 timer begins counting down when a user enters the checkout process, and if the user does 15 not complete their purchase during that time, they must restart the checkout process. 16 (Compl., Doc. No. 1 ¶¶ 50, 52.) At that point, a pop-up window will appear stating: “Are 17 you still there? Your cart has expired, but you can always try to book the same tickets!” 18 and providing options to “Go back to search” or “Try again.” (Compl., Doc. No. 1 ¶ 52, 19 Fig. 6.) Plaintiff argues that given the length of Defendant’s Privacy Policy and Terms and 20 Conditions, and the fact that the hyperlinks to those policies only appear after the user 21 selects a payment method, the average user cannot read the entirely of those policies before 22 the ten-minute checkout timer has expired. (Compl., Doc. No. 1 ¶¶ 49-51.) 23 The Court rejects Plaintiff’s contention that users “do not assent” to Defendant’s 24 terms because a user with an average reading speed cannot finish reading the Privacy 25 Policy and Terms and Conditions before the checkout timer elapses. It similarly rejects 26 Plaintiff’s suggestion that the countdown timer imposes undue pressure that negates any 27 consent users do provide via the checkbox. If a user has not completed reviewing 28 Defendant’s terms before ten minutes have elapsed, the user is under no obligation to 1 complete the checkout process. This remains the case even it this means the user’s selected 2 seats may no longer be available after the timer elapses. See Oberstein v. Live Nation Ent., 3 Inc., 2021 WL 4772885 (C.D. Cal. Sept. 20, 2021), aff’d, 60 F.4th 505, at *8 (9th Cir. 4 2023) (rejecting plaintiffs’ argument that the pressure applied by “ticket holds” and a 5 checkout countdown timer prevented them from reviewing defendant’s terms before 6 making a purchase). Further, as Defendant notes and Plaintiff acknowledges in his 7 opposition, if users wish to review Defendant’s Privacy Policy and Terms and Conditions 8 outside the checkout process, they may access the policies at any time via hyperlinks at the 9 bottom of Defendant’s website. (See Doc. No. 7 at 10.) 10 Though Plaintiff acknowledges the links to Defendant’s policies at the bottom of its 11 website, he argues the links are “inconsequential to this Court’s inquiry” in light of Ninth 12 Circuit precedent stating that “consumers cannot be expected to ferret out hyperlinks to 13 terms and conditions to which they have no reason to suspect they will be bound.” (Doc. 14 No. 7 at 10-11 (quoting Jackson v. Amazon.com, Inc., 65 F.4th 1093, 1100 (9th Cir. 2023) 15 (quoting Nguyen v. Barnes & Noble Inc., 763 F.3d at 1179)).) But the authority Plaintiff 16 cites does not support his position. In Nguyen, the Ninth Circuit considered browsewrap 17 agreements. In contrast with the clickwrap agreement at issue in this case, in a browsewrap 18 agreement, “a website’s terms and conditions of use are generally posted on the website 19 via a hyperlink at the bottom of the screen.” 763 F.3d at 1176. “The defining feature of 20 browsewrap agreements is that the user can continue to use the website or its services 21 without visiting the page hosting the browsewrap agreement or even knowing that such a 22 webpage exists.” Id. (quoting Be In, Inc. v. Google Inc., 2013 WL 5568706, at *6 (N.D. 23 Cal. Oct. 9, 2013)). The Ninth Circuit held that that “where a website makes its terms of 24 use available via a conspicuous hyperlink on every page of the website but otherwise 25 provides no notice to users nor prompts them to take any affirmative action to demonstrate 26 assent, even close proximity of the hyperlink to relevant buttons users must click on – 27 without more – is insufficient to give rise to constructive notice.” Id. at 1178-79. It noted 28 further that “[w]hile failure to read a contract before agreeing to its terms does not relieve 1 a party of its obligations under the contract, the onus must be on website owners to put 2 users on notice of the terms to which they wish to bind consumers.” Id. (citation omitted). 3 Here, Defendant did more than simply make its terms available on its website. The 4 allegations in the complaint show that it drew users’ attention to its policies during the 5 ticket checkout process and required users to take affirmative action to demonstrate their 6 assent to those terms. (See Compl., Doc. No. 1 ¶ 51, Fig. 5.) As such, Plaintiff was not 7 expected to “ferret out a hyperlink” to policies he had no reason to suspect would bind him. 8 Rather, Plaintiff was presented with conspicuous hyperlinks to Defendant’s policies during 9 the checkout process, and in order to complete his purchase, Plaintiff was required to affirm 10 that he agreed to be bound by the stated terms. And beyond that, Defendant provided 11 hyperlinks to the same Privacy Policy and Terms and Conditions at the bottom of its 12 website, which could be accessed at any time outside the checkout process. 13 For the reasons above, the Court concludes that Plaintiff consented to Defendant’s 14 Privacy Policy and Terms and Conditions, which disclose the data practices he challenges 15 in his complaint. Accordingly, Plaintiff cannot state a claim for violations of CIPA or 16 invasion of privacy under the California Constitution, and therefore, the Court dismisses 17 those claims. 18 III. Leave to Amend Is Denied 19 Plaintiff requests leave to amend his complaint in the event that Defendant’s motion 20 to dismiss is granted. (Doc. No. 7 at 23). “Leave to amend is warranted if the deficiencies 21 can be cured with additional allegations that are ‘consistent with the challenged pleading’ 22 and that do not contradict the allegations in the original complaint.” United States v. 23 Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (quoting Reddy v. Litton Indus., 24 Inc., 912 F.2d 291, 296-97 (9th Cir. 1990)). Under this standard, leave to amend should 25 not be granted. The Court’s dismissal of Plaintiff’s claims under CIPA and the California 26 Constitution is based on the allegations in his complaint that show he consented to 27 Defendant’s Privacy Policy and Terms and Conditions, which disclose the data practices 28 he challenges. As discussed, consent is a bar to both of Plaintiff’s claims. Plaintiff cannot 1 |}overcome this pleading deficiency through amendment. Accordingly, leave to amend 2 || would be futile and should not be granted. See Lakes, _ F. Supp. 3d __, 2025 WL 3 || 1036639, at *8-10 (dismissing complaint including CIPA claim and claim for invasion of 4 || privacy under California Constitution without leave to amend because amendment could 5 ||not “overcome the issue of consent”); Smith, 262 F. Supp. 3d at 956 (denying leave to 6 ||amend where “no amendment could change the fact that Plaintiffs consented to Facebook’s 7 || conduct’). 8 CONCLUSION 9 For the reasons above, the Court grants Defendant’s motion to dismiss without leave 10 amend for failure to state a claim.! 1] 12 IT IS SO ORDERED. 13 || DATED: June 5, 2025 bu lL. . 14 MARILYN L. NUFF, District J 15 UNITED STATES DISTRICT COURT 16 17 18 19 20 21 22 23 24 In its motion to dismiss, Defendant argues Plaintiff's complaint should be 25 || dismissed because: “(i) the Court lacks subject matter jurisdiction because Plaintiff has 26 Article III standing, (11) the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501, expressly preempts all of Plaintiff's claims, and (111) the Complaint 27 || further fails to state a claim upon which relief can be granted.” (Doc. No. 6.) Because 28 the Court grants Defendant’s motion to dismiss for the reasons above, the Court declines to address the additional bases Defendant argues constitute grounds for dismissal.