OPINION AND ORDER
BERTELSMAN, District Judge.
On January 4, 1991, this matter came before the court for hearing on defendants' motion to dismiss (MTD), which the court treats as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b). Joseph A. Newberg appeared on behalf of plaintiff. C. Thomas Hectus and James E. Boyd appeared on behalf of defendants.
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