Ottemann v. Knights of Columbus ( 2022 )


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  • Case: 21-30138     Document: 00516340925         Page: 1    Date Filed: 06/02/2022
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    June 2, 2022
    No. 21-30138                        Lyle W. Cayce
    Clerk
    Eric Ottemann, an individual, on behalf of himself and
    the proposed class,
    Plaintiff—Appellant,
    versus
    Knights of Columbus, a Connecticut corporation,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:19-cv-11291
    Before Dennis, Southwick, and Wilson, Circuit Judges.
    Leslie H. Southwick, Circuit Judge:
    An insurance agent contracted with an insurance company to recruit
    and manage insurance sales agents in Louisiana. After several years, the
    agent concluded that the company was violating his contract and causing him
    financial injury. The agent sued for breach of contract and related claims.
    The district court dismissed the suit for failure to state a claim. We partly
    disagree and thus REVERSE IN PART and AFFIRM IN PART.
    Case: 21-30138        Document: 00516340925           Page: 2   Date Filed: 06/02/2022
    No. 21-30138
    FACTUAL AND PROCEDURAL BACKGROUND
    The Knights of Columbus — referred to here as “the Order” or “the
    KCs” — is a Catholic fraternal society and charitable organization based in
    Connecticut. The Order offers insurance products to its members. To
    promote and sell these insurance products, the Order contracts with Field
    Agents (“FAs”) and General Agents (“GAs”). FAs promote and sell
    insurance products to prospective customers, and GAs recruit and oversee
    FAs within a specified territory. GAs may also sell insurance products in
    their territory.
    Under the terms of their respective contracts, FAs and GAs are paid
    commissions on the insurance sales and renewals that they generate. GAs
    also receive commissions from the sales made by the FAs in their territory.
    The Order allows FAs to “receive a draw against future . . . commissions in
    an amount to be determined by the General Agent and the Order.” “The
    right to commissions” for the FA, though, is “subject to offset by the Order
    of any amounts paid to the Field Agent as a draw against future
    commissions.” In the event that the FA fails to repay the draw, the GAs are
    liable:
    The General Agent shall also be liable to the Order for any
    amounts paid to the Field Agent as a draw against future
    commissions and for any debt of the Field Agent on account of
    [supplies provided to the Field Agent by the Order and
    commission adjustments], provided the Field Agent received
    the draw . . . or incurred the debt while under a contract to the
    Order to which the General Agent was a party.”
    The Plaintiff, Eric Ottemann, began selling insurance for the Order in
    2006 as an FA. He worked in that capacity until he became a GA in 2013. As
    a GA, Ottemann was responsible for the territory of “Southeast Louisiana.”
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    The relationship between Ottemann and the Order was not always an
    easy one.     Ottemann alleges miscommunication, mismanagement, and
    malfeasance on the part of the KCs. Ottemann alleges that the Order
    interfered with his contracts by enlisting or terminating FAs without
    Ottemann’s input, enlarging the FAs’ draws in contradiction to Ottemann’s
    wishes, and placing limits on which individuals he could solicit within his
    territory.   Ottemann also contends that this meddling was due to a
    misalignment in incentives: The Order’s “public ratings as well as the
    bonuses of [the Order’s] senior employees were significantly affected by [the
    Order’s] perceived manpower . . . . Members of [the Order’s] upper
    management told Mr. Ottemann privately that they would receive larger
    bonuses if the General Agents signed more Field Agents.” More FAs,
    though, meant a larger draw — and potentially a larger draw debt for
    Ottemann: “The risk of a Field Agent’s failure to pay draw debt was borne
    exclusively by Mr. Ottemann . . . . [The Order] bore no risk, and it simply
    paid draw debt from poorly performing Field Agents by paying them from
    the commissions of General Agents such as Mr. Ottemann.”
    Ottemann resigned in 2015. He brought suit against the KCs in 2019
    in the United States District Court, Eastern District of Louisiana, alleging
    among other claims that the KCs breached his contract. His Third Amended
    Complaint alleged seven claims, including breach of contract and of the duty
    of good faith, along with violations of Connecticut and Louisiana wage
    payment laws. In the alternative, Ottemann pled several non-contractual
    theories of recovery. The district court dismissed each of the claims for
    failure to state a claim. Ottemann timely appealed.
    DISCUSSION
    This court “review[s] a district court’s grant of a motion to dismiss de
    novo.” Boyd v. Driver, 
    579 F.3d 513
    , 515 (5th Cir. 2009) (per curiam). “To
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    determine the applicable law, a federal court sitting in diversity applies the
    choice of law rules of the forum.” Benchmark Elecs., Inc. v. J.M. Huber Corp.,
    
    343 F.3d 719
    , 726 (5th Cir. 2003). Because Ottemann brought suit in
    Louisiana, we apply its choice of law rules. See 
    id.
     Louisiana Civil Code
    Article 3515 provides the general rule: “Except as otherwise provided . . . an
    issue in a case having contacts with other states is governed by the law of the
    state whose policies would be most seriously impaired if its law were not
    applied to that issue.” La. Civ. Code Ann. art. 3515.
    I.   Contract claims
    We begin with Ottemann’s related breach of contract and breach of
    the duty of good faith claims. His contracts with the KCs stated that the
    instruments “shall be governed by and interpreted in accordance with the
    laws of the State of Connecticut.” Article 3540 of the Louisiana Civil Code
    “generally gives contracting parties the freedom to choose which state’s law
    will govern disputes arising out of the contract.” Cherokee Pump & Equip.
    Inc. v. Aurora Pump, 
    38 F.3d 246
    , 250 (5th Cir. 1994). We conclude that
    Connecticut law applies to the contractual disputes.
    To state a claim for breach of contract under Connecticut law, a
    plaintiff must show “the formation of an agreement, performance by one
    party, breach of the agreement by the other party[,] and damages.” Chiulli v.
    Zola, 
    905 A.2d 1236
    , 1243 (Conn. App. Ct. 2006) (quotation marks and
    citation omitted). If a contract’s language is unambiguous, its interpretation
    is a matter of law and “the words of the contract must be given their natural
    and ordinary meaning.” See Cruz v. Visual Perceptions, LLC, 
    84 A.3d 828
    ,
    834 (Conn. 2014) (quotation marks and citation omitted). “A contract is
    unambiguous when its language is clear and conveys a definite and precise
    intent.” 
    Id.
     If a contract is ambiguous, though, “the determination of the
    parties’ intent is a question of fact.” 
    Id. at 833
     (quoting Ramirez v. Health
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    Net of the N.E., Inc., 
    938 A.2d 576
    , 586 (Conn. 2008)). “[A] contract is
    ambiguous if the intent of the parties is not clear and certain from the
    language of the contract itself.” 
    Id. at 834
     (quoting United Illuminating Co. v.
    Wisvest-Connecticut, LLC, 
    791 A.2d 546
    , 550 (Conn. 2002)).
    To constitute a claim for breach of the implied covenant of good faith
    and fair dealing under Connecticut law, “the acts by which a defendant
    allegedly impedes the plaintiff’s right to receive benefits that he or she
    reasonably expected to receive under the contract must have been taken in
    bad faith.” Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 
    67 A.3d 961
    , 986
    (Conn. 2013). Lower Connecticut courts have identified three elements in
    this analysis: (1) “the plaintiff and the defendant were parties to a contract
    under which the plaintiff reasonably expected to receive certain benefits;”
    (2) “the defendant engaged in conduct that injured the plaintiff's right to
    receive some or all of those benefits;” (3) “the defendant was acting in bad
    faith” when engaging in that conduct. See, e.g., American Int’l Specialty Lines
    Co. v. HMT Inspections, No. 2010-cv-95007419-s, 
    2011 WL 1759098
    , at *5
    (Conn. Super. Ct. Apr. 13, 2011).
    In his complaint, Ottemann claimed breaches of Sections 4, 7, 8, and
    13 of his GA Contract; Sections 2 and 6 of the agreements he signed with FAs
    in his capacity as a GA; and unspecified provisions of his FA contract. He
    also claimed that the same actions breached the covenant of good faith and
    fair dealing. The district court found that, “[u]pon review of these alleged
    breaches, the amended complaint fails to identify an action that violates the
    terms of either contract.” Further, the court held that “the practices
    complained of . . . are set forth clearly within the GA Agreement.” 1 In our
    1
    As a preliminary matter, the district court seems to have considered only two
    contracts. The district court’s order stated: “there are two contracts at issue: [t]he [2013]
    General Agent Agreement . . . and the [earlier] Field Agent Agreement.” The district
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    review, though, we find ambiguity in certain clauses. We consider the alleged
    breaches first of Ottemann’s GA contract, then of the FA contracts to which
    Ottemann was a party, and, finally, of Ottemann’s original FA contract.
    a. Ottemann’s GA contract
    Ottemann alleges that the Order breached Sections 4, 7, 8, and 13 of
    his GA contract.
    Section 4 of the GA contract provides that “the General Agent shall
    be free to exercise independent judgment as to the eligible persons from
    whom applications for insurance will be solicited, and as to the time and place
    of such solicitation.” It also states: “The General Agent shall abide by rules
    and procedures established by the Order, but such rules and procedures shall
    not be construed as interfering with the freedom of action of the General
    Agent as described in this agreement.”
    Ottemann argues that the Order breached this provision when it
    prevented him from soliciting certain members in his region. Ottemann’s
    complaint states that the Order directed Ottemann to refrain from soliciting
    NFL coach Joe Lombardi, who lived in Ottemann’s territory, because the
    Order sought to solicit him under their NFL-specific program.
    The parties differ in their understanding of this conduct. Ottemann’s
    interpretation of this provision, as alleged in his complaint, is that
    “[S]ection[] 4 of the [GA] Agreement . . . stated that Plaintiff was an
    independent contractor that was ‘free to exercise independent judgment as
    to eligible persons from who applications for insurance will be solicited’ and
    court does not seem to have contemplated the various FA contracts to which Ottemann
    and the Order were parties but which primarily concerned Ottemann’s FAs. Ottemann did
    not include these separate contracts with his pleadings, and his complaint merely suggested
    that the FA agreements he signed in his capacity as a GA were substantially the same as the
    one he signed in 2013.
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    have ‘freedom of action.’” The Order responds that the GA contract
    explicitly stated that Ottemann had no “authority to bind the Order to issue
    any insurance policy,” and that it was no breach to tell Ottemann not “to
    waste his (and the Order’s) time and resources soliciting that person.” The
    Order also argues there would be no damages to sustain a claim because, even
    if Ottemann was allowed to solicit Lombardi, the Order contractually
    reserved rights to refuse the issuance of policies.
    We hold that Ottemann’s claim as to Section 4 is plausible at the
    motion to dismiss stage. Although there is nothing particularly surprising
    about the Order’s interest in diverting high-value prospects into a special
    sales program, the contract states that the rules and procedures set up by the
    Order “shall not be construed as interfering with the freedom of action of the
    General Agent.” The contract does not demarcate the boundary between
    Ottemann’s freedom of action as a GA and the scope of the Order’s ability
    to dictate “rules and procedures” that would divert otherwise available
    insurance prospects from his territory. We hold that Ottemann’s claim based
    on breach of Section 4 of the GA contract survives the motion to dismiss
    stage. Because Ottemann plausibly alleges that this diversion was done with
    bad faith, his claim for breach of the duty of good faith and fair dealing
    regarding Section 4 of the GA contract also survives the motion to dismiss
    stage.
    The remainder of Ottemann’s theories of breach of the GA contract
    were properly dismissed.       Section 6 of the GA contract states that
    commissions will be paid according to a schedule incorporated in the
    contract. Section 7(c) states that “[t]he right to commissions . . . shall also
    be subject to payment of the General Agent’s indebtedness to the Order,”
    stating a non-exclusive list of items included in the calculation of that
    indebtedness.
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    In his complaint, Ottemann alleges that the Order impermissibly
    withheld commissions under Section 7 by failing to make appropriate
    reimbursements and illegitimately increasing the FA draw debt. 2
    Specifically, Ottemann alleges that he was never reimbursed for “costs for
    leasing an office, using computer equipment, supplies, insurance, software,
    postage, and continuing education, among others.” Ottemann also claims
    that the Order “withheld, diverted, deducted, or purportedly offset Mr.
    Ottemann’s earned renewal commissions by the amount of Field Agents’
    draw debt.”
    These may be understandable grievances, but they do not constitute
    additional breaches of contract. For example, the Order was not obligated
    under the GA contract to reimburse Ottemann for “costs for leasing an
    office, using computer equipment, supplies, insurance, software, postage,
    and continuing education.” On the contrary, Section 5(d) of the GA contract
    specifically stated that “[t]he General Agent and his Field and District
    Agents shall not incur any expense on behalf of the Order,” and Section 7(c)
    specifically allows for deductions for “supplies provided to the General
    Agent or his Field and District Agents by the Order.” If anything, the GA
    contract makes Ottemann liable to the Order for such expenses, not the other
    way around.
    2
    In his third amended complaint, Ottemann also alleges that the Order
    renegotiated contracts after his termination so that he would no longer earn commissions.
    The only portion of the appellate briefing that could potentially relate to this claim merely
    states that a Knights of Columbus Vice President once said, “[w]e have ways to make [a
    General Agent] stay away by cutting off his [insurance policy] renewals and commissions,”
    and that the Order “engaged in the same course of conduct in relation to [Ottemann’s]
    omissions.” Such limited discussion is insufficient to sustain the argument on appeal. See
    United States v. Scroggins, 
    599 F.3d 433
    , 447 (5th Cir. 2010) (holding that an appellant
    waives a claim on appeal by failing to brief it adequately).
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    Further, Ottemann has not alleged an additional breach in his claim
    that the Order “withheld, diverted, deducted, or purportedly offset [his]
    earned renewal commissions by the amount of Field Agents’ draw debt.” It
    is not a breach of the contract to hold Ottemann liable for legitimate Field
    Agent draw debt: Section 6(b) expressly provides that commissions are
    “subject to offset . . . of any amounts paid to the General Agent, or to the
    General Agent’s Field Agents, as a draw against future commissions.”
    Further, even if the Order interfered with Ottemann’s freedom of action as
    a GA in preventing his termination of FAs, the appropriate measure of
    damages would necessarily contemplate compensation for withheld
    commissions due to illegitimate draw debt.
    Ottemann’s alleged breaches of Section 8 and 13 of his GA contract
    also fail. Section 8 of the GA contract provides for the vesting and payment
    of renewal commissions for GAs.            Section 13 concerns the return of
    “property of the Order” upon termination. Because Ottemann has not
    addressed on appeal how the Order breached these provisions, he has
    forfeited these arguments. See Scroggins, 
    599 F.3d at 447
     (holding an
    appellant waives a claim on appeal by failing to adequately brief it).
    Summarizing Ottemann’s claims about his GA contract, we hold that
    Ottemann has stated a plausible claim that the Order breached Section 4 of
    his GA contract. The district court did not err, though, in dismissing
    Ottemann’s claims under Sections 7, 8, and 13 of the GA contract.
    b. FA contracts to which Ottemann was a party
    Ottemann also alleges that the Order breached “Sections 2 and 6 of
    the Field Agent Agreements signed by [Ottemann]” in his capacity as a GA.
    Ottemann does not specify how the Order breached Section 2 of the
    FA contract, which allows the GA to “change or revoke the assignment of
    councils [assigned to an FA] in accordance with guidelines established by the
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    Order.” Ottemann might be arguing that this provision allowed him to
    terminate FAs at will as a GA. This would necessarily involve “changing or
    revoking the assignment of councils” in the process. Such an interpretation
    would exceed the scope of authority delegated to him by the contract.
    Because Ottemann did not specifically allege that he sought to change the
    council assignments for his FAs and was stymied in this pursuit by the Order,
    we hold that he has not alleged a plausible breach pertaining to Section 2 of
    the FA contracts.
    Ottemann makes more concrete allegations pertaining to a breach of
    Section 6 of the FA contracts. Section 6(c) sets out the guidelines regarding
    an FA’s draw. It states that the FA may receive a draw “in an amount to be
    determined by the General Agent and the Order.”             In his complaint,
    Ottemann alleges that the Order breached the “Field Agent Agreements
    where Plaintiff was a party” by not allowing Ottemann to “set[] the amount
    of [his] Field Agents’ draws.”
    Specifically, Ottemann alleges that he had no input into the amount of
    the draws. In his complaint, Ottemann alleges that “Defendant became the
    sole decisionmaker regarding hiring and terminating Field Agents and setting
    the amount of their draws.” The contract is ambiguous as to the balance of
    the power sharing between the Order and Ottemann. If one reads the
    contract to mean that both the GA and the Order must agree to the amount
    of an FA draw, but the Order in fact was “the sole decisionmaker,”
    Ottemann has alleged a plausible breach.          If, instead, the Order were
    permitted to override Ottemann’s input, there would be no breach of
    contract. The text of the contract does not clearly demarcate the division of
    power envisioned by the parties, and resolving this dispute precipitates a
    question of fact which cannot be resolved as a matter of law on a motion to
    dismiss. Because Ottemann plausibly alleges that the Order increased his
    staff for its own benefit in bad faith, his claim for breach of the duty of good
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    faith and fair dealing regarding Section 6 of the FA contracts also survives
    the motion to dismiss stage.
    c. Ottemann’s FA original contract
    Ottemann’s remaining breach of contract allegations concern
    provisions of his FA Contract.          Ottemann alleges that the Order
    impermissibly deducted debt accrued by the FAs under his management as a
    GA from recurring commissions he was due from his time as an FA.
    Ottemann’s complaint does not identify any particular provision of
    the FA contract that the Order allegedly violated. His briefing discusses
    Section 7(c) of the FA contract, which allowed deductions to his own FA
    commissions on account of “the Field Agent’s indebtedness to the [O]rder.”
    From there, Ottemann argues that this creates liability only for debts
    incurred in his capacity as an FA. He contends this is so based on the FA
    agreement’s statement that the commission reduction was subject to
    “payment of the Field Agent’s indebtedness to the Order, including but not
    limited to” a number of FA-specific expenses and obligations.
    The Order reads the Section 7(c) deduction allowance more broadly.
    According to the Order, because “Field Agent” is a defined term that refers
    at all times in that contract to Eric Ottemann, “the Field Agent’s
    indebtedness to the Order” extends beyond any indebtedness that Ottemann
    might incur in his capacity as an FA and extends to any indebtedness he might
    have incurred at any future point. The Order argues this provision permits
    it to deduct debts that Ottemann became responsible for in his capacity as a
    GA against compensation he was due under his old (but never novated or
    cancelled) FA agreement.
    We hold that the contract is ambiguous as to the scope of the FA’s
    indebtedness to the Order under Section 7(c) of the FA contract. It may be
    entirely reasonable that the Order would expect any future debts under
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    subsequent contracts to count against Ottemann’s earnings under the
    original FA contract. On the other hand, given that the FA contract has no
    provision governing elevation to a GA position, nor does it refer to any future
    contractual relationships, it is ambiguous as to whether “the Field Agent’s
    indebtedness to the Order” contemplates indebtedness incurred under other
    contracts as well as indebtedness incurred under the original FA contract.
    Accordingly, Ottemann’s breach of contract claim as it relates to Section 7(c)
    of his FA contract survives the motion to dismiss stage.
    II.   Equitable claims
    Ottemann’s complaint also alleges claims for unjust enrichment and
    quantum meruit. 3 Once again we apply Connecticut law to evaluate these
    claims that sound in contract. See La. Civ. Code Ann. art. 3540.
    The Connecticut Supreme Court’s guidance is sufficiently clear:
    Claims for unjust enrichment or quantum meruit may stand “[w]herever
    justice requires compensation . . . for property or services rendered under a
    contract, and no remedy is available by an action on the contract.” Town of
    New Hartford v. Conn. Res. Recovery Auth., 
    970 A.2d 592
    , 609 (Conn. 2009)
    (quoting 26 Williston on Contracts, § 68:4 (4th ed. 2003)). In such
    cases, “restitution of the value of what has been given must be allowed.” Id.
    At the same time, “an employee [may] not recover in unjust enrichment . . .
    when there exist[s] an express, enforceable employment contract that set[s]
    the terms of the employee’s salary but [does] not provide for [incentive
    compensation sought], and the employee [does] not . . . perform[] services
    3
    Although Ottemann asserts unconscionability as a separate issue on appeal, his
    complaint does not allege a separate unconscionability claim. In any case, we cannot say
    that the GA contract meets the high bar for unconscionability set by the Connecticut
    Supreme Court. See Smith v. Mitsubishi Motors Credit of Am., 
    721 A.2d 1187
    , 1190–93
    (Conn. 1998) (outlining the exacting standards for a finding of either procedural or
    substantive unconscionability).
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    not contemplated by that contract.” Id. at 611. Only “when an express
    contract does not fully address a subject, a court of equity may impose a
    remedy to further the ends of justice.” Id. at 612 (quoting Klein v. Arkoma
    Prod. Co., 
    73 F.3d 779
    , 786 (8th Cir. 1996)). Because commissions — the
    subject matter for which Ottemann seeks recovery — are provided for in the
    contract, his remedies are limited to that provided for by the contract. No
    separate equitable claim is viable.
    III. Wage payment statute claims
    Ottemann also brought claims under both the Connecticut wage law
    and the Louisiana Wage Payment Statutes. The district court dismissed
    Ottemann’s claim under Connecticut wage law because it found that
    Ottemann was “not an employee under Connecticut’s wage law.” The court
    relied on a Connecticut trial court decision to state that non-Connecticut
    workers are “not afforded the protection of the Connecticut [wage payment]
    statute.” Kubas v. Hartford Fin. Servs. Co., 
    27 Conn. L. Rptr. 565
    , 
    2000 WL 1170237
    , at *2 (Conn. Super. Ct., July 19, 2000).
    We make no holding as to whether Ottemann is covered under
    Connecticut’s wage law. Rather, as both the Louisiana and Connecticut
    statutes purport to protect employee wages after discharge, we conclude that
    the district court should have addressed the antecedent question of which
    wage statute applies under Book IV of the Louisiana Civil Code, “Conflict of
    Laws.” See La. Civ. Code Ann. art. 3515. This analysis was not
    performed by the district court.
    The district court also dismissed Ottemann’s Louisiana wage
    payment claim. Its findings regarding the Louisiana wage payment claim,
    though, rested on the propriety of the Order’s deductions: “Plaintiff’s
    commissions were always subject to offset in accordance with the express
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    terms of the General Agent Agreement, and thus in accordance with the
    terms of employment.”
    Because we have held that Ottemann has stated plausible breach of
    contract claims that survive a motion to dismiss, the district court will also
    need to conduct a more extensive analysis of Ottemann’s Louisiana wage
    payment claim on remand if it finds that the Louisiana Wage Payment
    Statutes apply after conducting a choice of law analysis.
    ***
    We REVERSE the district court’s holding that Ottemann has failed
    to state a claim upon relief which can be granted regarding a breach of
    contract in relation to Section 4 of the GA contract, Section 6 of the FA
    contracts to which he was a party, and Section 7(c) of Ottemann’s original
    FA contract. We REVERSE the district court’s holding that Ottemann has
    failed to state a claim for the breach of the duty of good faith and fair dealing
    in relation to performance of Section 4 of the GA contract and Section 6 of
    the FA contracts. We also REVERSE the district court’s holdings that
    Ottemann has failed to state a claim under both the Connecticut and
    Louisiana wage payment laws, and REMAND for further consideration.
    We AFFIRM the remainder of the district court’s judgment, including the
    dismissal of Ottemann’s equitable claims.
    14