Gomez et al v. Garda CL Great Lakes, Inc. et al

Filing 35

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/23/2013:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GABRIEL GOMEZ and ADAM HEDBERG,
Plaintiffs,
Case No. 13 C 1002

v.

Hon. Harry D. Leinenweber

GARDA CL GREAT LAKES, INC.,
VILLAGE OF BROADVIEW, DETECTIVE
DAVID YURKOVICH, and CURTIS
MEIGHAN,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Garda CL Great Lakes, Inc.,
Curtis

Meighan,

Village

of

Broadview,

and

Detective

David

Yurkovich’s Motions to Dismiss Plaintiffs’ Amended Complaint.

For

the reasons stated herein, the Motions are granted in part and
denied in part.
I.
Plaintiffs

Gabriel

BACKGROUND

Gomez

(“Gomez”)

and

Adam

Hedberg

(“Hedberg”) were employees at Garda CL Great Lakes, Inc. (“Garda”).
Garda

is

a

private

security

company

that

provides

armored

transportation for money securities.
While employed at Garda, Plaintiffs worked as armored vehicle
operators.

As part of their duties, they handled and transported

“e-cash” bags.

E-cash bags are sealed bags that contain a fixed

amount of cash and are used to refill automated teller machines
(“ATM’s”).
Allegedly, in December 2011, Plaintiffs suspected one of their
“e-cash” bags did not contain the proper amount of money.

Because

of this, they notified their supervisor immediately and continued
to

complete

their

route

per

their

supervisor’s

instructions.

Shortly thereafter, Garda began an internal investigation regarding
the missing funds.
During this investigation, Plaintiffs answered all of Garda’s
questions and passed a polygraph examination.

Despite this, on or

about February 24, 2012, Broadview Police Detective David Yurkovich
(“Detective

Yurkovich”)

contacted

Plaintiff

Gomez

to

ask

him

additional questions about the e-cash bag and the missing money.
After consulting with legal counsel, Gomez chose to exercise his
Fifth

Amendment

questions.
Detective

right

and

refused

to

answer

any

additional

After he refused to cooperate, Plaintiffs allege that
Yurkovich

told

Gomez

“that

the

Broadview

Police

investigation was also the Garda investigation, and if Plaintiff
Gomez refused to make a statement . . . then [his] employment would
be terminated.”

Am. Compl. ¶ 14.

Subsequently, on February 29, 2012, Defendant Curtis Meighan
(“Meighan”), a Garda branch manager, informed Gomez that “he had
learned of [his] refusal to cooperate with the Broadview Police and

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that [he] was indefinitely suspended.”

Am. Compl. ¶ 15.

Garda

discharged Gomez the same day.
The allegations surrounding Plaintiff Hedberg are similar.
Detective Yurkovich questioned him on or about March 3, 2012 and
informed him “that [Gomez] was going to lose his job for not
cooperating with the Broadview Police and that what happened to
[Gomez] would happen to [Hedberg], if [he] refused to cooperate.”
Am. Compl. ¶ 17.

Despite the warning, Hedberg also exercised his

Fifth Amendment right and refused to cooperate with the Broadview
Police.

On the same day, Garda suspended Hedberg indefinitely and

later discharged him.
On April 16, 2013, Plaintiffs filed suit in this Court.

In

their Amended Complaint, they assert both federal and state law
claims

against

Defendants

Garda

and

Meighan

(the

“Garda

Defendants”) and Defendants Village of Broadview and Detective
Yurkovich (the “Broadview Defendants”).

Specifically, Count I

alleges Meighan and Yurkovich deprived Plaintiffs of their due
process rights and are liable under 42 U.S.C. § 1983.

Count II

alleges a second claim against Meighan and Yurkovich under 42
U.S.C.

§

1983

for

conspiracy.

Count

III

is

indemnification against the Village of Broadview.

a

state

law

Count IV is a

state law defamation claim against the Garda Defendants.

Count V

is a state law retaliatory discharge claim against the Garda

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Defendants.

Both sets of Defendants have moved to dismiss the

entirety of Plaintiffs’ Complaint.
II.

LEGAL STANDARD

When reviewing a motion to dismiss under Rule 12(b)(6), the
Court takes all well pleaded allegations of the complaint as true
and views them in the light most favorable to the plaintiff.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012). To comply with the notice-pleading standard of Federal
Rule of Civil Procedure 8, a complaint must include “a short and
plain statement of the claim that the pleader is entitled to
relief, and must provide the defendant with fair notice of the
claim and its basis.”

Id. To survive dismissal, a claim must have

facial plausibility.

Appert, 673 F.3d at 622.

A claim has facial

plausibility when “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
662, 663 (2009).

Ashcroft v. Iqbal, 556 U.S.

The plausibility of a claim is context-specific,

and therefore the reviewing court must “draw on its judicial
experience and common sense.”
III.
A.

Id. at 664.
ANALYSIS

Count I - 42 U.S.C. 1983-Due Process

Count I alleges Defendants Meighan and Yurkovich violated
Plaintiffs’ due process rights under 42 U.S.C. 1983.

Plaintiffs

fail to specify whether the claim is based upon a deprivation of a
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property or liberty interest.

Defendants claim that under either

interest,

dismissed.

Count I

should

be

Yurkovich

adds

that

qualified immunity shields him from liability.
Claims for violations of procedural due process require a
plaintiff to allege “(1) deprivation of a protected interest, and
(2)

insufficient

deprivation.”
530,

534

(7th

procedural

procedural

protections

surrounding

the

Michalowicz v. Village of Bedford Park, 528 F.3d
Cir.

due

2008).

process

“As

claim,

a

necessary

[Plaintiffs]

protected property or liberty interests.”

component
must

of

a

identify

a

Santana v. Cook County

Board of Review, 679 F.3d 614, 621 (7th Cir. 2012).

Because

Plaintiffs fail to specify what right they have been deprived, the
Court will analyze whether Count I survives under either the
deprivation of a property interest or a liberty interest.
1.
To

establish

Amendment,

a

a

Property Interest

property

plaintiff

must

interest
have

under

the

Fourteenth

a

unilateral

Id. at 621.

Instead, a

“more

expectation of [the claimed interest].”

than

plaintiff must establish “a legitimate claim of entitlement to it.”
Id.

An entitlement exists when “statutes[,] regulations [or a

contract]

. .

.

establish

a

framework

of

factual conditions

delimiting entitlements which are capable of being explored at a
due process hearing.”

Id.

(citing Khan v. Bland, 630 F.3d 519,

527 (7th Cir. 2010)).
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Plaintiffs’ allegations here fall short of establishing an
entitlement to continued employment.

They do not claim a federal

statute, collective bargaining agreement, or other contract with
Garda grants them a right to continued employment.
Complaint

never

even

alleges

explicitly

entitled to continued employment.

that

In fact, the

Plaintiffs

were

Instead, Plaintiffs acknowledge

that Garda is a private employer.

Am. Comp. ¶ 7.

there is a presumption that employment is at-will.
Martin, 561 F.3d 685, 688 (7th Cir. 2009).

In Illinois,
Rujawitz v.

Plaintiffs have not

overcome this presumption. Accordingly, Plaintiffs fails to allege
a protected property interest in Count I.
2.

Liberty Interest

While Plaintiffs’ allegations in Count I are scant, they seem
to allege Defendants Meighan and Yurkovich violated their due
process rights because Defendants have prevented Plaintiffs from
pursuing future employment in their chosen field of work.

The

Court presumes the crux of this claim relates to Plaintiffs’
allegations regarding the comments Meighan made about Plaintiffs
being “thieves” and the statements of theft in the Plaintiffs’
employment

files.

These

allegations

seem

to

suggest

that

Defendants are liable because they have deprived Plaintiffs their
occupational liberty interests.
“The concept of liberty protected by the Due Process Clause
includes one’s occupational liberty, or the liberty to follow a

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trade, profession, or other calling.”
F.Supp.2d

791,

798

(N.D.

Ill.

Bryant v. Gardner, 545

2008)

(citations

omitted).

Plaintiffs who claim they have been deprived of their occupational
liberty

interests

must

allege

that

“(1)

the

employer

made

stigmatizing comments; (2) the comments were publicly disclosed;
[and]

(3)

the

plaintiff

employment as a result.”
661,

670

(7th

Cir.

suffered

a

tangible

loss

of

other

Id. (citing Townsend v. Vallas, 256 F.3d

2001)).

In

these

types

of

cases,

“the

employee’s good name, reputation, honor, or integrity must be
called into question in a manner that makes it virtually impossible
for the employee to find new employment in his chosen field.”

RJB

Properties Inc. v. Bd. of Educ. of the City of Chi., 468 F.3d 1005,
1011 (7th Cir. 2006).
Plaintiffs’ Complaint seems to satisfy all three elements.
Plaintiffs allege Defendant Meighan told other Garda employees that
they were thieves and also claim their employment files include
accusations of theft.

Am. Compl. ¶ 23.

Such statements, made to

third parties, calls Plaintiffs’ reputation and integrity into
question

and

are

damaging

to

association[] in the community.”

Plaintiffs’

“standing

and

Ulichny v. Merton Comm. Sch.

Dist., 249 F.3d 686, 705 (7th Cir. 2001).

Plaintiffs add that

Defendants’ conduct “effectively bars Plaintiffs from the pursuit
of employment in their chosen line of security work.”
¶ 29.

Am. Compl.

While this allegation is not necessarily indicative of a

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“tangible

loss”

of

other

employment,

at

this

litigation, the Court finds it sufficient.

stage

in

the

RJB Properties Inc.,

468 F.3d at 1011.
Despite alleging the necessary elements for the deprivation of
an occupational liberty interest, Count I still fails.

With

respect to Defendant Meighan, Plaintiffs fail to provide sufficient
detail to establish that Meighan’s conduct should be attributable
to the State even though he is a private citizen.

Hallinan v.

Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 815-16
(7th Cir. 2009).
Ordinarily,
Section 1983.
2000).

a

private

individual

is

not

liable

under

Brokaw v. Mercy Cnty., 235 F.3d 1000, 1016 (7th Cir.

However, there are circumstances where a private actor’s

conduct becomes attributable to the state.

Hallinan, 570 F.3d at

815-16.
Private action can become state action when private
actors conspire or are jointly engaged with state actors
to deprive a person of constitutional rights, where the
state compels the discriminatory action, when the state
controls a nominally private entity, when it is entwined
with its management or control, when the state
delegates a public function to a private entity, or when
there is such a close nexus between the state and the
challenged action that seemingly private behavior
reasonably may be treated as that of the state itself.
Id. (citations omitted).
In their Amended Complaint, Plaintiffs claim Meighan acted
under the color of state law because Meighan and Yurkovich “act[ed]
jointly” to deprive Plaintiffs of their constitutional rights.
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Amend. Compl. ¶ 30.

Meighan argues Count I should be dismissed

because the allegations concerning his conduct being attributable
to the State are conclusory.

The Court agrees.

The only allegation Plaintiffs provide to support the fact
that

Meighan

Defendants,

and

Yurkovich

“entered

into

acted

an

jointly

agreement

is

amongst

that

the

themselves

two
to

retaliate against Plaintiffs for the lawful assertions of the Fifth
Amendment privilege against compelled self-incrimination and took
steps in furtherance of this conspiracy, most notably the discharge
of the Plaintiffs and communications related to the same.”
Compl. ¶ 21.

Amend.

Without more, the Court does not find this sufficient

to satisfy the notice pleading standards of Federal Rule of Civil
Procedure 8.
As added support, the Court finds Meighan’s reliance on Fraser
v. Schultze, 663 F.Supp. 512 (N.D. Ill. 1987) persuasive.

There,

the court dismissed a plaintiff’s § 1983 claim against private
individuals,

finding

the

plaintiff’s

allegations

that

the

individual defendants “agreed and conspired with each other to
commit the acts alleged herein” insufficient to establish conduct
attributable to the State.
here are comparable.

Id. at 515.

Plaintiffs’ allegations

The Complaint fails to allege that Meighan

acted “willfully in joint activity” with Yurkovich and fails to
allege that Yurkovich abused his authority as a state actor.
such, Count I fails against Defendant Meighan.

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As

See, Fraser, 663

F.Supp. at 516 (stating that a private party acts “under color of
state law” within the meaning of Section 1983 when the private
party acts jointly with a state official who abuses his or her
authority).

Accordingly, Count I against Defendant Meighan is

dismissed.
Count I also fails against Defendant Yurkovich.

While it is

undeniable that as a Detective for the Broadview Police Yurkovich
is a state actor, the Court cannot see how Yurkovich could be
implicated in Plaintiffs’ claimed occupational liberty deprivation.
The Complaint fails to allege that Yurkovich made defamatory
comments about Plaintiffs to third parties and fails to allege that
Yurkovich

caused

the

theft

Plaintiffs’ employment files.

allegations

to

be

included

in

As such, Count I against Defendant

Yurkovich fails.
The Court acknowledges Plaintiffs’ attempt to change Count I
to a retaliation claim under 42 U.S.C. 1983 in their response
brief.

See Pls’. Resp. to Defs’. Mot. Dis. at 4, ECF No. 28.

However, it is well established that a party’s complaint “may not
be amended by briefs in opposition to a motion to dismiss . . .
[.]”

Thomas v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989).

There is no question that as it stands now, Count I asserts a due
process claim.

For the reasons mentioned above, this claim fails

against

Defendant

both

Meighan

and

Accordingly, the Court dismisses Count I.

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Defendant

Yurkovich.

B.

Count II - 42 U.S.C. § 1983-Conspiracy

Count II alleges Defendants Meighan and Yurkovich are liable
under Section 1983 for conspiracy.

The Complaint states that

Meighan and Yurkovich “reached an agreement amongst themselves to
unlawfully deter and coerce Plaintiffs into forfeiting their rights
under the Fifth Amendment . . .”

Am. Comp. ¶ 32.

Defendants argue

Plaintiffs’ conclusory allegations require dismissal.

The Court

again agrees.
“To

establish

§

1983

liability

through

a

conspiracy,

a

plaintiff must [establish that] (1) a state official and private
individual(s) reached an understanding to deprive plaintiff of his
constitutional rights; and (2) those individual(s) were willful
participants in joint activity with the State or its agents.”
Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir. 2011). Additionally,
a plaintiff must allege, “(1) an express or implied agreement among
defendants to deprive plaintiff of his or her constitutional rights
and (2) actual deprivations of those rights in the form of overt
acts in furtherance of the agreement.”
F.2d 437, 442 (7th Cir. 1988).

Scherer v. Balkema, 840

In Illinois, the agreement must be

“to accomplish either an unlawful purpose or a lawful purpose by
unlawful means.”

Mosley v. City of Chicago, 614 F.3d 391, 399 (7th

Cir. 2010).
Plaintiffs’ only allegations relating to the conspiracy are
that “Defendants [Meighan and Yurkovich] reached an agreement

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amongst themselves to unlawfully deprive Plaintiffs of their rights
to due process of law . . . [and] committed overt acts and [were]
[] otherwise willful participant[s] in joint activity.” Am. Compl.
¶¶ 33, 35.

Plaintiffs fail to provide any factual information

concerning the circumstances of the conspiracy or the alleged overt
acts committed to further the conspiracy.

The Court finds these

allegations conclusory and insufficient to set forth a plausible
conspiracy claim under § 1983.

See, Roehl v. Merrilees, No. 11 C

4886, 2012 WL 1192093 at *7-8 (N.D. Ill. Apr. 10, 2012) (noting
that conspiracy claims have been held to a higher pleading standard
in the Seventh Circuit).
The

specific

additional support.

allegations
Id.

in

Roehl

v.

Merrilees

provide

There, the Court dismissed a plaintiff’s

§ 1983 conspiracy claim because the plaintiff failed to provide the
“facts or circumstances upon which either an express or implied
agreement between Defendants could be inferred

. . . [.]”

Id. at

*8 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555
(2007)).

In

Roehl,

the

plaintiff

alleged

only

that

the

“[d]efendants conspired to arrest and detain [her] and deprive her
of her civil rights.”

Id.

The allegations here are similarly deficient.
not

offer

any

factual

allegations

that

suggest

Plaintiffs do
Meighan

and

Yurkovich were associated with each other and fail to allege that
the

two

even

communicated.

While
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in

their

response

brief,

Plaintiffs claim that the “timing” of their terminations should
allow the Court to infer that Meighan was working together with
Yurkovich, the Court has already noted that Plaintiffs cannot amend
their complaint through their response brief. Thomas v. Nachtrieb,
888 F.2d at 1205.

As such, the Court dismisses Count II.
C.

Count III - Indemnification

Count III alleges that the Village of Broadview is liable
under

745

Yurkovich’s

ILCS

10/9-102

employer.

for

indemnification

However,

because

the

as

Defendant

Court

dismissed

Plaintiffs’ claims against Defendant Yurkovich in Counts I and II,
Count III is also dismissed.

See, Lewis v. Weis, No. 09-C-2219,

2012 WL 45242, at *2 (N.D. Ill. 2012) (dismissing a plaintiff’s
indemnification count without prejudice because indemnity under 745
ILCS 10/9-102 “is dependent on the employee being found liable for
damages . . . which cannot happen with the [employee Officer] is
dismissed from this case”).
D.

Count IV - Defamation

In Count IV, Plaintiffs attempt to set forth a state law
defamation claim against the Garda Defendants.
Meighan

is

liable

because

he

“used

words

that

They contend
imputed

the

commission of a criminal offense . . . and words that prejudice[d]
the plaintiffs and imputed a lack of ability [with respect to] the
plaintiff’s [sic] profession, constituting defamation per se.” Am.

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Compl. ¶ 42.

Plaintiffs claim Garda is liable under the doctrine

of respondeat superior.

Id. ¶ 46.

The Garda Defendants argue Count IV should be dismissed
because Plaintiffs fail to provide sufficient factual allegations.
Alternatively, they contend that Count IV fails because the alleged
defamatory statements are protected by the qualified privilege
granted to “statements made within a legitimate business context.”
See, Republic Tobacco Co. v. N. Atl. Trading Co., Inc., 381 F.3d
717, 727 (7th Cir. 2004).
In

Illinois,

a

valid

claim

for

defamation

consists

of

allegations that: “(1) the defendant made a false claim concerning
the plaintiff; (2) the defendant published the defamatory statement
to a third party; and (3) the plaintiff was damaged.”
v. Cooney, 788 F.Supp.2d 744, 753 (N.D. Ill. 2011).

Cartwright
Illinois

classifies defamatory statements into two groups - per quod and per
se.

Bryson v. New Am. Publ’ns, 672 N.E.2d 1207, 1214, 1221 (Ill.

1996).
that

Statements that are defamatory per quod consist of remarks

require

meaning.

extrinsic

facts

to

illustrate

their

defamatory

Statements that are defamatory per se are so harmful to

the plaintiff’s reputation that damages are presumed.

Baier v.

Rohr-Mont Motors, Inc., No. 12 C 8234, 2013 WL 2384269 at *7 (N.D.
Ill. May 29, 2013).
Illinois limits statements that are per se defamatory to five
categories.

Muzikowski v. Paramount Pictures Corp., 477 F.3d 899,
- 14 -

904 (7th Cir. 2007).

The categories relevant in this case are

statements which impute (1) “the commission of a criminal offense”;
(2) “an inability to perform or want of integrity in performing
employment duties”; and (3) “words that prejudice a party in her
trade,

profession,

or

business.”

Id.

In

their

Complaint,

Plaintiffs claim Meighan told other Garda employees they were
“thieves.”

Am. Compl. ¶ 23.

Plaintiffs state Meighan published

these allegations in their employment files.
entirety

of

the

Complaint,

the

Court

After reviewing the

finds

the

allegations

sufficient. While Plaintiffs do not state expressly that Meighan’s
statements are false, they aver that they “did not steal any money
from their employers and were not involved in any alleged thefts.”
Am. Compl. ¶ 11.

This is enough for the Court to infer that the

statements were false.

Moreover, the Court has little trouble

finding Plaintiffs’ allegations of theft impute the commission of
a criminal offense, a lack of integrity, and may prejudice them in
their profession.

Finally, because alleged communication was made

within a corporate environment and in Illinois this “may constitute
publication for defamation purposes[.]”

Cartwright, 788 F.Supp.2d

at 753.
Plaintiffs’

allegations

that

Meighan

made

the

defamatory

statements with malice causes the Court to reject Defendants’
argument surrounding qualified privilege.

See, Am. Compl. ¶ 44.

While it may be that Meighan’s statements were privileged because

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they were “made within a legitimate business context[,]” the
Complaint alleges the requisite intent requirement to plead an
abuse of privilege.

Republic Tobacco Co., 381 F.3d at 727; see

also, Morton Grove Pharmaceuticals, Inc. v. Nat’l Pediculosis
Ass’n, Inc., 494 F.Supp.2d 934, 943 (N.D. Ill. 2007).
support,

it

is

well

established

that

a

“complaint

anticipate or plead around affirmative defenses.”

As added
need

not

Therefore, at

this stage in the litigation, Count IV survives.
For the sake of completeness, the Court notes that Plaintiffs
have alleged a valid claim against Garda under the doctrine of
respondeat

superior.

For

an

employer

to

be

liable

for

the

intentional tort of an employee, a plaintiff must allege that the
employee was acting within the scope of his employment. Zuidema v.
Raymond Christopher, Inc., 866 F.Supp.2d 933, 937 (N.D. Ill. 2011).
An

employee’s

conduct

is considered

employment when such conduct is:

within

the

scope

of

his

“(1) of the kind the employee is

employed to perform; (2) occurs substantially within the authorized
time and space limits; and (3) is actuated, at least in part, by a
purpose to serve the master.” Id. (quoting Bagent v. Blessing Care
Corp., 862 N.E.2d 985, 991 (Ill. 2007)).

While in Count IV

Plaintiffs only allege that Defendant Garda “is sued in this count
under the doctrine of respondeat superior[]” after reviewing the
Complaint in its entirety the Court finds Plaintiffs’ allegations

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that

Meighan “engaged in the conduct complained of in the course

and scope of his employment” sufficient.
E.

Am. Compl. ¶¶ 6, 46.

Count V - Retaliatory Discharge

Count V asserts a state law retaliatory discharge claim
against the Garda Defendants.

The basis for this claim lies in

Plaintiffs’ assertions that they were terminated in retaliation for
exercising their Fifth Amendment rights.

Defendants argue Count V

should be dismissed because Plaintiffs fail to allege that their
termination violates a public policy.

The Court agrees.

In general, Illinois law considers employment to be at-will,
meaning that “an employer may terminate an employee . . . for any
reason or for no reason.”

Shaffer v. Nat’l R.R. Passenger Corp.,

No. 11 C 970, 2011 WL 4916493, at *1 (N.D. Ill. Oct. 14, 2011).
The tort of retaliatory discharge is an exception to this general
rule. Id.

To state a claim for retaliatory discharge, a plaintiff

must allege that:
retaliation

for

“(1) an employee has been discharged; (2) in
the

employee’s

activities;

and

(3)

discharge violated a clear mandate of public policy.”

that

the

Bourbon v.

Kmart Corp., 223 F.3d 469, 472 (7th Cir. 2007).
Count V fails to establish a violation of public policy and
fails to establish that the public interest is at stake.

In

Illinois, courts use Illinois’ constitution, its statutes, and its
judicial decisions to establish public policy.

Callozzo v. Office

Depot, Inc., No. 97 C 5308, 1998 WL 111628, at *2 (N.D. Ill.
- 17 -

Mar. 6, 1998).

However, simply citing a constitutional provision

does not establish a valid retaliatory discharge claim.
Plaintiffs fail to make such allegations here.

Id.

While they

claim they were discharged “in retaliation for the exercise of
their right to remain silent,” they fail to allege that this
constitutes a “clearly mandated public policy” and fail to allege
that the public interest is at stake.

Because of this, the Court

finds dismissal of Count V appropriate.

See, Callozzo, 1998 WL

111628, at *2.
IV.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion to
Dismiss is granted in part and denied in part. The Court dismisses
Counts I, II, III and V.

Count IV remains.

If Plaintiffs wish to

file an Amended Complaint, they must do so within two weeks of the
entry of this Order.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date: August 23, 2013

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