IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ALASKA
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`
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`
`
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`Case No. 3:16-cv-00136-SLG
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`
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`TD AMERITRADE, INC., TD AMERITRADE
`HOLDING CORPORATION, INC., TD
`AMERITRADE IP COMPANY, INC., and TD
`AMERITRADE SERVICES COMPANY,
`INC.,
`
`
`Plaintiffs,
`
`
`v.
`
`
`JAMES RICHARD MATTHEWS,
`
`
`Defendant.
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`
`
`
`ORDER RE MOTION TO DISMISS
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`Before the Court at Docket 41 is Plaintiffs’ Rule 12(b)(6) Motion to Dismiss. The
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`motion has been fully briefed.1 Oral argument was not requested and was not necessary
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`to the Court’s decision.
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`Plaintiffs (collectively, “TD Ameritrade”) initiated this action on June 27, 2016.2 TD
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`Ameritrade’s Amended Complaint asserts three causes of action: declaratory judgment,
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`cancellation and release of claimed nonconsensual common law lien pursuant to Alaska
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`law, and injunctive relief.3 Defendant James Matthews filed an Answer to the Amended
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`
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`1 See Docket 45 (Opp.); Docket 50 (Reply).
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`2 Docket 1 (Compl.).
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`3 Docket 4 (Am. Compl.).
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`Case 3:16-cv-00136-SLG Document 62 Filed 10/25/17 Page 1 of 15
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`Complaint that also asserted a counterclaim for copyright infringement.4 On March 20,
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`2017, Mr. Matthews filed an Amended Answer asserting seven additional counterclaims.5
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`
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`The Court has jurisdiction as to Mr. Matthews’ copyright infringement claims under
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`federal question jurisdiction.6 The Court has supplemental jurisdiction over Mr. Matthews’
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`state law counterclaims.7
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`STANDARD OF REVIEW
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`TD Ameritrade moves to dismiss all of Mr. Matthews’ counterclaims pursuant to
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`Federal Rule of Civil Procedure 12(b)(6) and the Supreme Court’s interpretation of that
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`rule in Ashcroft v. Iqbal.8 “To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’”9 Iqbal does not require a litigant to prove his case in his pleading, but it requires
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`the litigant to “state ‘enough fact[s] to raise a reasonable expectation that discovery will
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`reveal evidence of [the misconduct alleged].’”10 The pleading must contain “enough facts
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`to state a claim to relief that is plausible on its face.”11 This inquiry requires a court to
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`4 Docket 22 (Ans.) at 7, ¶ 55.
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`5 Docket 33 (Am. Ans. and Countercls.); see infra pp. 5–6.
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`6 28 U.S.C. § 1331.
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`7 See 28 U.S.C. § 1367(a) (“[D]istrict courts shall have supplemental jurisdiction over all other
`claims that are so related to the claims in the action within such original jurisdiction that they form
`part of the same case or controversy under Article III of the United States Constitution.”).
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`8 See Docket 41 at 5 (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
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`9 Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`10 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
`(quoting Twombly, 550 U.S. at 556) (alterations in original).
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`11 Twombly, 550 U.S. at 570.
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
`Order re Motion to Dismiss
`Page 2 of 15
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`“draw on its judicial experience and common sense.”12 When reviewing a Rule 12(b)(6)
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`motion, a court considers only the complaint and other pleadings, documents
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`incorporated into the pleadings by reference, and matters on which a court may take
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`judicial notice.13
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`When a motion to dismiss for failure to state a claim is granted, a court “should
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`freely give leave when justice so requires.”14 But leave to amend is properly denied as to
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`those claims for which amendment would be futile.15
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`BACKGROUND
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`For purposes of TD Ameritrade’s Motion to Dismiss, the Court accepts the factual
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`allegations in Mr. Matthews’ operative pleading as true and “construe[s] them in the light
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`most favorable” to him.16 According to the First Amended Answer and Counterclaims, in
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`April 2012, Mr. Matthews applied for an unfunded user-modifiable investment account
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`with TD Ameritrade.17 At or about the same time as he opened the account, Mr. Matthews
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`entered into a Client Agreement with TD Ameritrade.18 The account provided Mr.
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`12 Iqbal, 556 U.S. at 679.
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`13 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing
`Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
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`14 Fed. R. Civ. P. 15(a).
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`15 Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund, 845
`F.2d 193, 195 (9th Cir. 1988)).
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`16 OSU Student All. v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d
`1202, 1216 (9th Cir. 2011)).
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`17 Docket 33 at 10, ¶ 61–63.
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`18 Docket 4-3 (Matthews’ Commercial Affidavit) at 15. The record also includes an End User
`License Agreement for thinkorswim® platform and paperMoney® functionality. Docket 4-10 (End
`User License Agreement) at 68. However, that document is dated January 29, 2016 and its
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
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`Matthews access to TD Ameritrade’s “thinkorswim” applications program interface
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`(“API”), which gave him the ability to create his own analytical tools for a self-directed
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`trading environment.19 Mr. Matthews alleges that users such as him were permitted to
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`download the API and “were encouraged to devise their own software programs” by
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`“modifying software routines available on the site.”20 Mr. Matthews alleges that “all
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`copyrighted routines created by TD Ameritrade [were] locked, and thus could not be
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`modifiable.”21 After signing up for an account, Mr. Matthews alleges that he used the API
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`to create analytical routines “in a novel manner.”22 By May 27, 2012, Mr. Matthews
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`alleges that he had created source code for over 100 routines to work with the thinkorswim
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`API.23
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` On May 27, 2012, Mr. Matthews alleges that TD Ameritrade “perpetrated a cyber
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`attack” which “destroyed [Mr. Matthews’] hard drive controller.”24 Mr. Matthews had saved
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`84 of the routines he had developed on another hard drive, so they were not destroyed
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`by the cyber attack.25 However, Mr. Matthews asserts that TD Ameritrade had copied the
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`relevance to Mr. Matthews’ claims, which arose in 2012, is undetermined. The record also
`contains a License Agreement in which Mr. Matthews agreed that his use of TD Ameritrade’s
`trading software was subject to the terms and conditions of that agreement. See Docket 4-3 at
`46.
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`19 See Docket 33 at 10, ¶ 61–64.
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`20 Docket 33 at 10–11, ¶ 65–70.
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`21 Docket 33 at 11, ¶ 67.
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`22 Docket 33 at 10, ¶ 64.
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`23 Docket 33 at 12, ¶ 74.
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`24 Docket 33 at 12, ¶ 75.
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`25 Docket 33 at 12, ¶ 75.
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
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`Page 4 of 15
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`routines he had created, all or most of which had copyright notices that Mr. Matthews had
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`imbedded in them.26 After obtaining Mr. Matthews’ software, TD Ameritrade is alleged to
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`have inserted its own copyright notice and date into Mr. Matthews’ software.27 TD
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`Ameritrade alleges that it terminated its business relationship with Mr. Matthews in early
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`June 2012.28 Mr. Matthews maintains that TD Ameritrade had “effectively wrongfully
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`terminated” his account on May 27, 2012.29
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`Mr. Matthews filed a copyright notice for the 84 routines under United States
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`Copyright Registration Number TXu1-822-654 effective June 28, 2012.30 Mr. Matthews
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`asserts that TD Ameritrade has been using his routines and allows at least 6.5 million of
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`its funded users to use Mr. Matthews’ code without his authorization.31
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`DISCUSSION
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`Mr. Matthews alleges eight counterclaims: a copyright infringement claim in
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`violation of 17 U.S.C. § 101 et seq.; one claimed violation of 17 U.S.C. §§ 1201 and 1202;
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`a claim seeking injunctive relief on claims one and two; a violation of Alaska Statute
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`45.50.471, the Unfair Trade Practices Act; two claims of breach of contract and breach of
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`the implied covenant of good faith and fair dealing; trespass on real property; and a
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`26 Docket 33 at 12, ¶ 76, 78.
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`27 Docket 33 at 12, ¶ 79.
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`28 Docket 4-2 (Letter from TD Ameritrade to Matthews dated June 11, 2012) at 1.
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`29 Docket 33 at 4, ¶ 13.
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`30 Docket 33 at 13, ¶ 81.
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`31 Docket 33 at 13, ¶ 82.
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`demand for accounting.32 TD Ameritrade moves to dismiss each counterclaim for failure
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`to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court will
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`address each claim in turn, and consistent with the Supreme Court’s guidance in Iqbal,
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`“begin[s] by taking note of the elements a plaintiff must plead to state a claim.”33
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`1. Copyright Infringement
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`Mr. Matthews’ First Counterclaim alleges copyright infringement. To state a prima
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`facie case of direct copyright infringement under 17 U.S.C. § 101, et seq., a party must
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`satisfy two requirements: “(1) they must show ownership of the allegedly infringed
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`material and (2) they must demonstrate that the alleged infringers violate at least one
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`exclusive right granted to copyright holders under 17 U.S.C. § 106.”34
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`TD Ameritrade asserts that Mr. Matthews “does not have ownership rights in any
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`asserted copyrightable work” and that it holds “all copyrights relative to the thinkorswim
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`software.”35 Mr. Matthews responds that registration of a copyright is prima facie
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`evidence of a valid copyright.
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`“[T]he registration of the copyright certificate itself establishes a prima facie
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`presumption of the validity of the copyright in a judicial proceeding . . . .”36 But the
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`statutory presumption of validity can be rebutted.37 To rebut this presumption, a party
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`32 Docket 33 at 14–18.
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`33 Ashcroft v. Iqbal, 566 U.S. 662, 675 (2009).
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`34 A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
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`35 Docket 41 at 5.
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`36 North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992).
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`37 Entm’t Research Grp., Inc. v. Genesis Creative Grp. Inc., 122 F.3d 1211, 1217 (9th Cir. 1997).
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`disputing validity of the copyright “must simply offer some evidence or proof to dispute or
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`deny the plaintiff’s prima facie case of infringement.”38
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`Although Mr. Matthews alleges that he has obtained a copyright registration for his
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`code, TD Ameritrade points to the Client Agreement to rebut the presumption of the
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`copyright’s validity. Mr. Matthews acknowledges he signed and agreed to the terms of
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`the Client Agreement, which states that “[m]y use of [TD Ameritrade’s] Services will not
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`confer any title, ownership interest, or intellectual property rights to me.”39 The agreement
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`also expressly prohibits Mr. Matthews from creating derivative works: “I will not . . . create
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`derivative works from, distribute, redistribute, display, sell or transfer, or create derivative
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`products from the Services.”40 Thus, even if Mr. Matthews obtained a copyright
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`registration for work he claims is original and novel, he appears to be precluded from
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`obtaining a copyright of any derivative works by the terms of the Client Agreement.
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`Yet Mr. Matthews alleges in his First Amended Answer and Counterclaims that
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`users of TD Ameritrade’s API “were permitted and encouraged to modify certain software
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`routines available on the site . . . .”41 However, Mr. Matthews has not alleged any facts
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`as to who, how, or when he was “permitted and encouraged” to modify TD Ameritrade’s
`
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`38 Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003) (summary
`judgment granted on copyright invalidity because lamp design lacked needed quantum of
`originality).
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`39 Docket 33 at 4, ¶ 15; Docket 4-3 at 17, ¶ 7(d).
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`40 Docket 4-3 at 17, ¶ 7(b).
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`41 Docket 33 at 11, ¶ 66. Mr. Matthews asserts that the software routines that he was encouraged
`to modify were not locked and to his knowledge all copyrighted routines were locked and were
`not modifiable. Docket 33 at 11, ¶ 67.
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
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`software. Moreover, Mr. Matthews has not alleged any basis to disregard the restriction
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`on derivative works in the Client Agreement.
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`In reply, TD Ameritrade asserts that dismissal is warranted because Mr. Matthews
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`has provided no factual allegations to support his claim that TD Ameritrade permitted and
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`encouraged him to use its software.42 The Court agrees. Mr. Matthews’ claim that he
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`had been given the authority to create and copyright derivative work appears to be directly
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`at odds with the Client Agreement. While such a claim is possible, Mr. Matthews has
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`failed to allege any facts to demonstrate that the claim is plausible.43 Accordingly, TD
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`Ameritrade’s Motion to Dismiss as to the First Counterclaim will be granted. However,
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`leave to amend will be accorded so as to permit Mr. Matthews the opportunity to allege
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`nonconclusory facts that explain why Mr. Matthews’ alleged software modifications to TD
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`Ameritrade’s API are protected by a valid copyright.
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`2. Digital Millennium Copyright Act
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`
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`Mr. Matthews’ Second Counterclaim alleges violations under 17 U.S.C. §§ 1201
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`and 1202 of the Digital Millennium Copyright Act. Section 1201(a) provides “[n]o person
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`shall circumvent a technological measure that effectively controls access to a work
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`protected under this title.” TD Ameritrade contends that Mr. Matthews has not provided
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`facts to show that TD Ameritrade bypassed the requisite technological measure in
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`accessing and obtaining Mr. Matthews’ code.44 Mr. Matthews asserts that “it is . . .
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`42 See Docket 50 at 2 (citing Iqbal, 556 U.S. at 679).
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`43 See Twombly, 550 U.S. at 570.
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`44 Docket 41 at 9.
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`common knowledge that hard drives have for many years . . . used encryption technology
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`to secure information on the hard drives.”45
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`A technological measure “effectively controls access to a work if the measure, in
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`the ordinary course of its operation, requires the application of information, or a process
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`or a treatment, with the authority of the copyright owner, to gain access to the work.”46
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`The House Judiciary Committee provided the following analogy:
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`[t]he act of circumventing a technological protection measure put in place
`by a copyright owner to control access to a copyrighted work is the
`electronic equivalent of breaking into a locked room in order to obtain a copy
`of a book.47
`
`Mr. Matthews’ First Amended Answer and Counterclaims alleges that TD
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`Ameritrade hacked his computer, “destroyed Defendant’s hard drive controller,” and
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`“copied the routines” he had created.48 But Mr. Matthews did not allege any facts
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`regarding the security of his hard drive or facts to indicate that his hard drive had
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`encryption technology that was circumvented by TD Ameritrade. Although a hard drive
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`with adequate protections could be a “technological measure,” Mr. Matthews has failed
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`to allege sufficient facts to push this claim “across the line from conceivable to
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`plausible.”49
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`45 Docket 45 at 10.
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`46 17 U.S.C. § 1201(a)(3)(B).
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`47 H.R. Rep. No. 105–551, at 17 (1998).
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`48 Docket 33 at 12, ¶ 75–76.
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`49 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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`Mr. Matthews also alleges that TD Ameritrade violated 17 U.S.C. § 1202 of the
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`Digital Millennium Copyright Act.50 Section 1202(b) provides that “[n]o person shall,
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`without the authority of the copyright owner or the law . . . (1) intentionally remove or alter
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`any copyright management information . . . .”51 Under the statute, “copyright management
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`information” includes “[t]he name of, and other identifying information about, the author
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`of a work.”52
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`TD Ameritrade asserts that Mr. Matthews “does not provide any copyright
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`management information” and did not allege that TD Ameritrade “intentionally removed
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`or altered such information.”53 But in Mr. Matthews’ First Amended Answer and
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`Counterclaims, Mr. Matthews alleges that after TD Ameritrade stole his software, it
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`removed or struck through his copyright notice that he had imbedded in the software.54
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`However, as discussed above, Mr. Matthews has not shown valid ownership of a
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`copyright.55 Ownership of a valid copyright is a predicate to asserting a claim under the
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`Digital Millennium Copyright Act.56 As discussed above with regard to the copyright
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`infringement counterclaim, the existence of a valid copyright has not been adequately
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`50 Docket 33 at 14.
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`51 17 U.S.C. § 1202(b).
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`52 17 U.S.C. § 1202(c).
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`53 Docket 41 at 11.
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`54 Docket 33 at 12, ¶ 78–79.
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`55 See supra at pp. 6–8.
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`56 See Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004) (“A
`plaintiff alleging a violation of § 1201(a)(2) [of the Digital Millennium Copyright Act] must prove:
`(1) ownership of a valid copyright on a work . . . .”).
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`pleaded. Accordingly, Mr. Matthews’ Second Counterclaim will be dismissed with leave
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`to amend.
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`3. Injunctive Relief
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`Mr. Matthews’ Third Counterclaim seeks injunctive relief as it relates to both the
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`First and Second Counterclaims. As discussed above, Mr. Matthews has not pleaded
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`facts to establish a plausible claim for either copyright infringement or violations to the
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`Digital Millennium Act. Therefore, Mr. Matthews’ claim for injunctive relief will also be
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`dismissed with leave to amend.
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`4. Unfair Trade Practices Act
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`
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`Mr. Matthews’ Fourth Counterclaim alleges TD Ameritrade violated Alaska’s Unfair
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`Trade Practices Act.57 Mr. Matthews does not oppose dismissal of this claim, but asserts
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`it should be without prejudice. In an affidavit appended to TD Ameritrade’s Complaint,
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`Mr. Matthews stated that “on or about, April 11, 2012 Affiant discovered his, (copyrighted
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`source code) was appropriated, copied and placed in [TD Ameritrade’s] publicly
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`accessible library for use by all other system users.”58 Mr. Matthews was aware of TD
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`Ameritrade’s alleged misappropriation in 2012, yet he did not file this counterclaim until
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`2016, considerably more than two years after the statute of limitations on this claim had
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`run.59 Based on the foregoing, TD Ameritrade’s Motion to Dismiss Mr. Matthews’ Fourth
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`57 Alaska Stat. § 45.50.531.
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`58 Docket 4-3 at 6, ¶ 17 (capitalization omitted).
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`59 See Alaska Stat. § 45.50.531(f) (“A person may not commence an action under this section
`more than two years after the person discovers or reasonably should have discovered that the
`loss resulted from an act or practice declared unlawful by AS 45.50.471.”).
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`Counterclaim under the Unfair Trade Practices Act will be granted with prejudice and
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`without leave to amend.
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`5. Breach of Contract and Implied Covenant of Good Faith and Fair Dealing
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`
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`Mr. Matthews’ Fifth and Sixth Counterclaims each allege breach of contract and
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`breach of implied covenant of good faith and fair dealing under Nebraska, Alaska, and/or
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`Illinois law.60 To establish a breach of contract claim in Alaska, Nebraska, or Illinois, a
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`claimant must establish the existence of a contract, a breach of that contract, and
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`resultant damages.61
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`Mr. Matthews’ Fifth Counterclaim alleges that TD Ameritrade violated a licensing
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`agreement published on TD Ameritrade’s website. The pleading references the
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`agreement as being annexed as Exhibit A; but no agreement was annexed. Mr. Matthews
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`has failed to state a claim for breach of contract in his Fifth Counterclaim. He has failed
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`to clearly identify the contractual agreement that existed between TD Ameritrade and
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`himself; he has failed to identify the specific provision(s) of that agreement that he is
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`alleging was breached by TD Ameritrade and when and how that breach occurred; and
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`he has failed to identify the damages he incurred as a result of that alleged breach.
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`However, because it appears there was some contractual relationship between the
`
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`60 Docket 33 at 16–17.
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`61 See Great W. Sav. Bank v. George W. Easley Co., J.V., 778 P.2d 569, 577 (Alaska 1989)
`(holding breach of contract claim adequately pleaded, which alleged a contractual obligation,
`breach and resultant damages); Phipps v. Skyview Farms, Inc., 610 N.W.2d 723, 730 (Neb. 2000)
`(“In order to recover in an action for breach of contract, the plaintiff must plead and prove the
`existence of a promise, its breach, damage, and compliance with any conditions precedent that
`activate the defendant’s duty.”); Kopley Grp. V., L.P. v. Sheridan Edgewater Properties, Ltd., 876
`N.E.2d 218, 226 (Ill. App. 2007) (“To succeed on a claim for breach of contract, a plaintiff must
`plead and prove the existence of a contract, the performance of its conditions by the plaintiff, a
`breach by the defendant, and damages as a result of the breach.”).
`
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`parties at some point, one final opportunity to amend as to this claim will be granted.
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`Since Mr. Matthews fails to identify the contract he is alleging that TD Ameritrade
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`breached, he has also not pleaded enough facts to establish a claim for breach of the
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`implied covenant of good faith and fair dealing. Accordingly, the Fifth Counterclaim will
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`be dismissed with leave to amend.
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`Mr. Matthews’ Sixth Counterclaim alleges that TD Ameritrade’s cancellation of his
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`account constituted a breach of contract.62 However, the Client Agreement between the
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`parties specifies that TD Ameritrade “reserve[s] the right to suspend and deny access to
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`the Services without prior notice or for any reason.”63 It is not plausible that TD
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`Ameritrade’s cancellation of Mr. Matthews’ account constituted a breach of contract. Nor
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`has Mr. Matthews pleaded any facts that could plausibly support a claim for a breach of
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`the implied covenant of good faith and fair dealing based on the cancellation. Accordingly,
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`TD Ameritrade’s Motion to Dismiss Mr. Matthews’ Sixth Counterclaim will be granted with
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`prejudice and no leave to amend.
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`6. Trespass to Real Property
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`
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`The Seventh Counterclaim alleges trespass to real property pursuant to Alaska
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`Statute § 09.10.050.64 Mr. Matthews acknowledges in his Opposition to the Motion to
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`Dismiss that “Plaintiffs are technically correct in stating that Matthews did not make any
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`allegations regarding real property . . . .”65 The Court finds that there is no plausible
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`62 Docket 30 at 17.
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`63 Docket 4-3 at 17.
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`64 Docket 33 at 17.
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`65 Docket 45 at 17.
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`factual basis for such a claim. Accordingly, the Court will grant TD Ameritrade’s Motion
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`to Dismiss Mr. Matthews’ Seventh Counterclaim with prejudice.
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`7. Accounting
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`
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`The Eighth Counterclaim seeks an accounting. A claim for accounting is generally
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`an equitable remedy.66 Under Alaska law, “[e]quity has jurisdiction to compel an
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`accounting where any fiduciary relationship exists.”67 A “fiduciary relationship exists when
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`one imposes a special confidence in another, so that the latter, in equity and good
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`conscience, is bound to act in good faith and with due regard to the interests of the one
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`imposing the confidence.”68
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`Mr. Matthews has not provided any facts to demonstrate that he and TD
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`Ameritrade had a fiduciary relationship. Thus, he has failed to plead a plausible factual
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`basis for an accounting remedy. Therefore, the Court will grant TD Ameritrade’s Motion
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`to Dismiss as to Mr. Matthews’ Eighth Counterclaim with prejudice and without leave to
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`amend.
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`CONCLUSION
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`Therefore, IT IS ORDERED that TD Ameritrade’s Motion to Dismiss at Docket 41
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`is GRANTED as follows:
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` Mr. Matthews’ First, Second, and Third Counterclaims, the copyright claims, are
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`dismissed without prejudice and with leave to amend.
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`66 See Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 770 (Alaska 1977).
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`67 Id.
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`68 Seybert v. Cominco Alaska Expl., 182 P.3d 1079, 1090 (Alaska 2008) (quoting Munn v.
`Thornton, 956 P.2d 1213, 1220 (Alaska 1998)).
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
`Order re Motion to Dismiss
`Page 14 of 15
`Case 3:16-cv-00136-SLG Document 62 Filed 10/25/17 Page 14 of 15
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`

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`Mr. Matthews’ Fourth Counterclaim, the Alaska Unfair Trade Practices Act claim,
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`is dismissed with prejudice.
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`
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`Mr. Matthews’ Fifth Counterclaim alleging an unspecified breach of contract and
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`breach of the implied covenant of good faith and fair dealing is dismissed without
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`prejudice and with leave to amend.
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`Mr. Matthews’ Sixth Counterclaim for breach of contract and breach of the implied
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`covenant of good faith and fair dealing based on the account termination is dismissed
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`with prejudice.
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`Mr. Matthews’ Seventh Counterclaim for trespass to real property is dismissed with
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`prejudice.
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`Mr. Matthews’ Eighth Counterclaim for accounting is dismissed with prejudice.
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`Mr. Matthews may file a Second Amended Answer and Counterclaim(s) consistent
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`with the terms of this order, but must do so no later than November 27, 2017. If Mr.
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`Matthews fails to file a Second Amended Answer and Counterclaim(s) that is consistent
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`with the terms of this order by that date, all of his remaining counterclaims may thereafter
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`be dismissed with prejudice and without further notice to him.
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`DATED this 25th day of October, 2017 at Anchorage, Alaska.
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` /s/ Sharon L. Gleason
` UNITED STATES DISTRICT JUDGE
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`Case No. 3:16-cv-00136-SLG, TD Ameritrade, Inc., et al. v. Matthews
`Order re Motion to Dismiss
`Page 15 of 15
`Case 3:16-cv-00136-SLG Document 62 Filed 10/25/17 Page 15 of 15
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`