Nelson v. Clermont County Veterans' Service Commission

Filing 103

ORDER granting in part and denying in part 51 Motion for Leave to File Amended Complaint; granting in part and denying in part 58 Motion to Dismiss; adopting Report and Recommendation 85 ; granting in part and denying in part 36 Motion to D ismiss for Failure to State a Claim. Clerk of Courts is directed to file plaintiff's Tendered Second Amended Complaint (#87). Defense shall file their Answer with 14 days. Counsel shall submit a proposed scheduling order within 10 days. Signed by Judge Herman J. Weber on 3/11/13. (do1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KRISTAN D. NELSON,
Plaintiff
v.

C-1-11-335

Clermont County Veterans' Service Commission
Defendants

ORDER
This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 85).
Pursuant to the record established at the hearings held on October 2,
2012 and February 26, 2013, there are no objections.
Upon a de novo review of the record, the Court finds that the Judge
has accurately set forth the applicable law and has properly applied it to
the particular facts of this case. Accordingly, in the absence of any
objection by plaintiff, this Court accepts the Report as uncontroverted.

2
The Report and Recommendation of the United States Magistrate
Judge (doc. no. 85) is hereby ADOPTED AND INCORPORATED HEREIN BY
REFERENCE. Defendant’s second Motion to Dismiss Portions of Plaintiff’s
First Amended Complaint for Failure to State a Claim (doc. no. 36) is
GRANTED in part, to the extent that all of Count Five (state law
retaliation) and portions of Counts Four and Six are DISMISSED from
plaintiff’s First Amended Complaint. Plaintiff’s claim of FMLA retaliation
and intentional infliction of emotional distress, based upon the same
alleged retaliatory conduct under the FMLA, IS NOT DISMISSED, pending
further development of the record; plaintiff’s Motion for Leave to File a
Second Amended Complaint (doc. no. 51) is GRANTED in part, to the
extent that plaintiff is permitted to file a Second Amended Complaint ,
consistent with the Report and Recommendation, that does not re-assert
claims against the Clermont County Board of Commissioners or renew
plaintiff’s ADA claim; defendant’s Motion to Dismiss Plaintiff’s Motion for
Leave to File a Second Amended Complaint (doc. no. 58) is GRANTED in
part, to the extent that plaintiff is not be permitted to re-assert claims
previously dismissed exclusively on legal

3
grounds; and, except as specifically granted in part herein, the motions of
both parties (doc. nos. 36, 51, and 58) are DENIED.
The Clerk of Courts is hereby DIRECTED to file plaintiff’s Tendered
Second Amended Complaint and Jury Demand (doc. no. 87). Defense
shall file their Answer to the Second Amended Complaint within fourteen
(14) days.
Counsel shall submit a proposed scheduling order within ten (10)
days of this Order.
IT IS SO ORDERED.
______s/Herman J. Weber______________
Herman J. Weber, Senior Judge
United States District Cour