Jones v. West Virginia University Board of Governors
Filing
31
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT (DKT. NO. 24 ). The Court grants in part the defendants' motion and dismisses, with prejudice, Count I of the second amended complaint and denies in part the defendant's motion to dismiss Count II of the amended complaint. The Clerk is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 8/25/16. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBIN JONES,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV154
(Judge Keeley)
BERNADETTE JUNGBLUT,
and ELIZABETH DOOLEY,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTION TO
DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
Pending before the Court is the motion to dismiss the second
amended complaint filed by the defendants, Bernadette Jungblut
(“Jungblut”)
and
Elizabeth
Dooley
(“Dooley”)
(collectively
“defendants”) (dkt. no. 24). For the reasons that follow, the Court
GRANTS in PART and DENIES in PART the defendants’ motion.
I. BACKGROUND1
Robin Jones (“Jones”) was a tenured Assistant Professor at
West Virginia University (“WVU”), where she held the position of
Director of the First-Year Seminar and Instructional Support.
Additionally,
she
held
the
secondary
appointment
of
Resident
Faculty Leader (“RFL”). During all times relevant to this case,
Jungblut
1
was
the
Executive
Director
of
the
Academic
Success
These facts are taken from the Second Amended Complaint (dkt.
no. 22) filed by the plaintiff, Robin Jones (“Jones”), which is
the operative complaint in this action.
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
Initiatives and the First-Year Experience for WVU, and Dooley was
the Associate Provost for Undergraduate Academic Affairs for WVU.
On or about December 2, 2014, WVU verbally notified Jones that
it was not renewing her secondary appointment as RFL for fiscal
year 2015-2016. Following that notice, in accord with the West
Virginia
level-one
Public
Employees
grievance
Grievance
challenging
the
Procedure,
Jones
nonrenewal
of
filed
her
a
RFL
appointment. In her grievance, Jones asserts that WVU violated
Title 133, Series 9, § 3.3 of the West Virginia Higher Education
Policy Commission’s procedural rules (“Rules”), by failing to
notify her of the RFL nonrenewal decision in writing by certified
mail at least one year before the expiration of her appointment.
Dkt. No. 22 at 3.
WVU conducted a level-one grievance conference on January 26,
2015,
at
which
Jones
appeared
without
legal
representation.
Ultimately, her grievance was denied by WVU’s Chief Grievance
Administrator, Sue Keller (“Keller”), in a written order dated
February 12, 2015. That order of denial stated that Jones’s
assumption that her tenure would carry over to her secondary
position as RFL was mistaken. Keller stated that, according to
WVU’s Associate Provost, the Rules only applied to tenured or
2
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
tenure-track positions, not to secondary non-teaching appointments.
Consequently, the one-year notice requirement did not apply to
Jones’s RFL position. In addition, Keller noted that, for purposes
of the secondary RFL appointment, Jones was an at-will employee
with no property interest in that position. Keller then concluded
that, “[h]aving no protected property interest in the [secondary]
RFL position . . . Grievant [Plaintiff] has no continuing right to
this position.” Dkt. No. 22 at 4 (brackets in original).
Forty-seven days following that denial, Jones was summoned to
Jungblut’s office, where she was provided with a letter dated April
1, 2015 (the “letter”) terminating her after forty (40) years of
service. The letter provided no reason for the termination,2 nor
was it issued by certified mail one year before the expiration of
her appointment, as required for tenured faculty pursuant to Title
133, Series 9 of the Rules. After reading the letter, Jones
2
According to the complaint, the entirety of the letter reads
as follows:
Dear Professor Jones:
Thank you for your service to Undergraduate Academic
Affairs, the University College, and Academic Success
Initiatives and the First-Year Experience. This letter
serves as notice that we do not intend to reappoint you
to the position, Director of the First-Year Seminar and
Instructional Support, for FY 2015-2016.”
Dkt. No. 22 at 4.
3
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
inquired of Jungblut: “Does this mean that as of July 1st, I no
longer have a job?” Jungblut replied; “That is correct.” Id. at 4.
According to Jones, neither the defendants nor any other WVU
representative informed her that “efforts would be made to reassign
her to instructional or non-instructional duties commensurate with
her experience.” Id. Jones claims that Jungblut and Dooley were
instrumental in the decision to terminate her.
Jones filed her first complaint in Monongalia County Circuit
Court on July 24, 2015, naming as defendant the WVU Board of
Governors
(“the
Board”),
and
“seek[ing]
relief
for
[her]
capricious, retaliatory and unlawful termination.” Id. at 5. The
Board removed the case to this Court on September 4, 2015, citing
federal question jurisdiction and supplemental jurisdiction over
the state law claims in the complaint.
Rather than answer the complaint, on September 10, 2015, the
Board moved to dismiss.
On September 28, 2015, Jones filed an
amended complaint adding Jungblut and Dooley as defendants. The
amended complaint was filed pursuant to Fed. R. Civ. P. 15(1)(B)
because Jones filed it within twenty-one (21) days of the filing of
the Board’s 12(b) motion to dismiss.
4
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
When she filed her amended complaint, Jones also moved to stay
the deadline on which she had to respond to the Board’s motion to
dismiss (dkt. no. 8). After Jones filed her amended complaint,
however, the Court denied as moot the Board’s pending motion to
dismiss the original complaint (dkt. no. 4). Then, on October 12,
2015, the Board moved to dismiss the amended complaint (dkt. no.
12).
On November 19, 2015, the Court conducted a status conference
with the parties, during which Jones moved to dismiss the Board as
a party without prejudice and sought leave to amend her complaint
for a second time. Without objection, the Court granted both
motions and ordered Jones to file the second amended complaint no
later than December 12, 2015. It also denied as moot the Board’s
motion to dismiss the amended complaint. Id.
Jones’s second amended complaint asserts two causes of action:
•
COUNT I:
Violation of Rights Guaranteed Under the First
Amendment of the United States Constitution
(Brought Under Authority of 42 U.S.C. § 1983)
•
COUNT II: Violation of Rights Guaranteed Under the Fourteenth
Amendment of the United States Constitution
(Brought Under Authority of 42 U.S.C. § 1983)
Count I alleges that WVU retaliated against Jones, terminating her
because she had filed a grievance, and, that by doing so, it
5
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
violated the legitimate exercise of her First Amendment rights.
Count II alleges that her employment constituted a property right
under the Fourteenth Amendment, and that her termination without
both procedural and substantive due process violated that right.
Pursuant to Fed. R. Civ. P. 12(b)(6), on February 4, 2016, the
defendants moved to dismiss the second amended complaint.
They
argue that Jones’s second amended complaint fails to state a claim
upon which relief can be granted. Dkt. No. 24. The motion is fully
briefed and ripe for decision. For the reasons that follow, the
Court GRANTS in PART and DENIES in PART the motion.
II. STANDARD OF REVIEW
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
While
a
complaint
does
not
need
detailed
factual
allegations, a plaintiff’s obligation to provide the grounds of his
entitlement
to
relief
requires
more
than
mere
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.
555 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Indeed, courts “are not bound to accept as true a
6
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986). In considering whether the facts
alleged are sufficient, “a complaint must contain ‘enough facts to
state a claim to relief that is plausible on its face.’” Anderson,
508 F.3d at 188 (quoting Twombly, 550 U.S. at 547).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of
a
complaint;
importantly,
it
does
not
resolve
contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992).
“But in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6),” so long as “all facts necessary
to the affirmative defense ‘clearly appear[] on the face of the
complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
III. ANALYSIS
In their motion to dismiss Count I, the defendants contend
that Jones’s § 1983 claim must fail because her grievance does not
qualify as protected speech under the First Amendment. As to Count
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JONES v. JUNGBLUT, ET AL.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
II, they contend that Jones had no property interest in her
position with WVU; if she had such an interest, they did not
deprive her of any property interest because Jones was afforded all
of the process to which she was due.
A.
Count I - First Amendment Claim
Public employees are “entitled to be protected from firings,
demotions and other adverse employment consequences resulting from
the exercise of their free speech rights, as well as other First
Amendment rights.”3 Alderman v. Pocahontas Cty. Bd. of Educ., 675
S.E.2d 907, 916 (W. Va. 2009) (citing Pickering v. Board of
Education, 391 U.S. 563 (1968)). When determining whether a public
employee’s speech is protected, courts must weigh “‘the interests
of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees.’” Lane v. Franks, 134 S. Ct. 2369, 2374 (2014)
(quoting Pickering, 391 U.S. at 568).
3
The First Amendment provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
U.S. Const. amend. I.
8
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
In Lane, the Supreme Court of the United States utilized the
following two-part test to determine whether the First Amendment
protects an employee’s speech:
“The first requires determining whether the employee
spoke as a citizen on a matter of public concern. If the
answer is no, the employee has no First Amendment cause
of action based on his or her employer's reaction to the
speech. If the answer is yes, then the possibility of a
First Amendment claim arises. The question becomes
whether the relevant government entity had an adequate
justification for treating the employee differently from
any other member of the general public.”
134 S. Ct. at 2378 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006) (citations omitted)). Thus, if the speech on which an
employee relies to support a First Amendment claim is not a matter
of public concern, there is no protection. See Ridpath v. Board of
Governors Marshall University, 447 F.3d 292, 316, n. 26 (4th Cir.
2006) (“[W]hether the employee’s speech addressed a matter of
public concern, is ‘[t]he threshold question.’” (quoting Rankin v.
McPherson, 483 U.S. 378, 384 (1987))).
Whether the speech is of public concern is purely a question
of law to be determined by a court. Huang v. Board of Governors of
University of North Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990)
(citations omitted). The Fourth Circuit has clearly stated that “a
public employee’s expression of grievances concerning his own
9
JONES v. JUNGBLUT, ET AL.
1:15CV154
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
employment is not a matter of public concern.” Id.; see also Givens
v. O'Quinn, 121 Fed. Appx. 984, 992 (4th Cir. 2005) (quoting
Huang). Moreover, The Supreme Court has cautioned that grievances
relating solely to an employee’s own individual employment should
not be transformed into constitutional claims. See Connick v.
Myers, 461 U.S. 138, 154 (1983).
The Supreme Court has also determined that a public employee’s
grievance does not amount to a matter of public concern simply by
virtue of the employee’s public employment:
Of course in one sense the public may always be
interested in how government officers are performing
their duties. But as the [] test has evolved, that will
not always suffice to show a matter of public concern. A
petition that “involves nothing more than a complaint
about a change in the employee’s own duties” does not
relate to a matter of public concern and accordingly “may
give rise to discipline without imposing any special
burden of justification on the government employer.” The
right of a public employee under the Petition Clause is
a right to participate as a citizen, through petitioning
activity, in the democratic process. It is not a right to
transform everyday employment disputes into matters for
constitutional litigation in the federal courts.
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 399 (2011)
(internal citations omitted).
It thus is clear that speech implicating a public matter
necessarily
must
address
issues
beyond
a
grievant’s
own
individualized interests. For example, in Lane, the Supreme Court
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JONES v. JUNGBLUT, ET AL.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
held that speech by a former director of a state program for
underprivileged youth was protected because it related to another
employee charged with stealing public funds. 134 S. Ct. at 2375.
Similarly, in Huang, it was undisputed that Huang’s whistle-blowing
was a matter of public concern because it related to an “improper
business arrangement between two [other faculty] members involving
state funds.” 902 F.2d 1140.
By
contrast,
in
Connick,
the
Supreme
Court
viewed
a
questionnaire circulated by an assistant district attorney to her
co-workers as unprotected speech because it purported to ask
questions
about
inter-office
policy
relating
solely
to
her
transfer. 461 U.S. at 154 (declining to “constitutionalize the
employee grievance . . . presented [t]here”). Similarly, in Brooks
v. Arthur, the Fourth Circuit addressed claims of retaliation by
two corrections officers who had complained that they were treated
unfairly by superior officers. 685 F.3d 367, 369-70 (4th Cir.
2012). After reviewing the complaints, the court dismissed the §
1983 claims, finding that the officers’ “speech pertained to
personal grievances and complaints about conditions of employment
rather than broad matters of policy meriting the protection of the
First Amendment.” Id. at 371.
11
JONES v. JUNGBLUT, ET AL.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
Here, Jones contends that West Virginia created the tenure
system to “ensure academic freedom” and “to enable the institutions
to
perform
their
societal
obligation
as
established
by
the
Legislature.” Dkt. No. 28 at 5. Although she was employed at a
public university, and a properly functioning tenure system may be
a matter of public concern, Jones’s grievance pertained solely to
her own personal employment. See, e.g., Robinson v. Balog, 160 F.3d
183, 189-90 (4th Cir. 1998) (“Every public employee’s job by
definition
affects
‘the
public,’
but
every
public
employee’s
grievance is not thereby of public concern.”).
The entirety of the allegedly protected speech at issue is
contained in Jones’s grievance and relates entirely to the nonrenewal of her secondary RFL appointment. Jones does not allege
that
any
matter
beyond
her
own
personal
interest
in
that
appointment is contained within the grievance. Indeed, were her
grievance
“‘released
to
the
public,
[it]
would
convey
no
information at all other than the fact that a single employee is
upset with [her termination].’” Brooks, 685 F.3d at 373 (quoting
Connick, 461 U.S. at 148).
For the reasons discussed, the Court concludes that Jones’s
grievance was not a matter of public concern and therefore is not
12
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
protected speech under the first part of the Lane test. As that is
the threshold question, her First Amendment claim necessarily
fails. See Ridpath, 447 F.3d at 316.
B.
Count II - Fourteenth Amendment Claim
In Count II, Jones alleges that she had a property interest
protected
under
the
Fourteenth
Amendment,4
and
therefore
was
entitled to the due process protections it affords. The defendants
argue that Jones did not have a protected property interest, but
that even if she did there was no constitutional violation. They
further argue that she was provided all of the process due her
under the Fourteenth Amendment. Dkt. No. 25 at 16-17.
To succeed on a § 1983 claim for a deprivation of property
without due process in violation of the Fourteenth Amendment, Jones
must establish (1) that she has a constitutionally protected
property interest, and (2) that she has been deprived of that
interest by state action. See Stone v. Univ. of Md. Med. Sys.
4
The Fourteenth Amendment provides:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
U.S. Const. amend. XIV, § 1.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
Corp., 855 F.2d 167, 172 (4th Cir. 1988); Board of Regents v. Roth,
408 U.S. 564, 569–70 (1972). Persons receiving a “benefit created
and defined by a source independent of the Constitution, such as
state law,” are vested with a property interest entitled to
procedural due process protections under the Fourteenth Amendment.
Huang, 902 F.2d at 1141 (citing Roth, 408 U.S. at 577; Bradley v.
Colonial Mental Health & Retardation Servs. Bd., 856 F.2d 703, 707
(4th Cir. 1988)).
Here, regarding her primary tenured teaching position, Jones
was contractually employed with WVU and clearly protected under the
tenure system pursuant to the Rules. Therefore, her “position as a
tenured professor is indisputably a property right entitled to
procedural due process protection.” Huang, 902 F.2d at 1141.
The defendants argue that the second amended complaint fails
to allege that Jones was deprived of tenure or that they refused to
compensate her accordingly. Dkt. No. 25 at 16. In support, they
argue that Jungblut’s letter simply informed Jones that she would
not be reappointed to the specific position of “Director of FirstYear Seminar and Instructional Support.” Id. Citing Huang and
Parkman, they further contend that Jones did not have a protected
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
property interest in a specific position, or even the physical
possession of a job.
It appears that the defendants are attempting to argue that
the letter did not notify Jones she was being terminated from her
tenured employment and would no longer serve in any position or be
compensated.
Rather, the letter simply advised Jones that she
would no longer hold the same specific position.
Such a reading of
the allegations in Jones’s second amended complaint is untenable.
The letter opened by thanking Jones for her service to WVU, which
she could reasonably infer to mean that her service was coming to
an end. While it is true the letter informed Jones that she would
not be reappointed to a particular position, it is worth recalling
that position was the only tenured position she had held. Further,
the
letter
provided
no
indication
that
another
position
was
available, or that the defendants intended to place her elsewhere
within the University, or even to compensate her nonetheless.
Indeed, as Jones has alleged, the purpose of the letter was made
clear after she inquired of Jungblut: “Does this mean that as of
July 1st, I no longer have a job?”, to which Jungblut replied, “That
is correct.” Dkt. No. 22 at 4.
Both because Jones had a protected
property interest in her tenured position and her second amended
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complaint
adequately
pleads
that
the
defendants
denied
that
interest, the Court concludes that she has stated a claim upon
which relief may be granted.
The
defendants
also
contend
that
the
grievance
process
provided Jones with all the procedural due process to which she was
entitled.5 Having already concluded that Jones has adequately pled
a due process claim in Count II, the Court need not address this
contention at this early stage of the litigation. “[A] motion to
dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts,
the merits of a claim, or the applicability of defenses.”
Martin,
980 F.2d at 952.
Furthermore, this is not one of those “rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint,” such that, “the defense may be reached
5
The defendants properly note that, although Jones would be
entitled to procedural due process, it is unlikely that she would
also be entitled to substantive due process protections. See Huang,
902 F.2d at 1142, n. 10 (“Unlike rights subject to procedural due
process protection, which arise from sources other than the
Constitution, substantive due process rights arise solely from the
Constitution. Dr. Huang’s entitlement to a position in BAE, if is
exists, is essentially a state law contract right, not a
fundamental interest embodied in the Constitution.” (citation
omitted) (emphasis added)).”
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 24]
by a motion to dismiss filed under Rule 12(b)(6).” Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.
1993)).
Too
termination
Accordingly,
many
and
unanswered
the
questions
grievance
dismissal
of
process
Count
development would be premature.
II
surrounding
remain
without
at
Jones’s
this
further
point.
factual
The Court therefore DENIES the
defendants’ motion to dismiss Count II of the second amended
complaint.
IV. CONCLUSION
For the reasons discussed, the Court GRANTS in PART the
defendants’ motion and DISMISSES WITH PREJUDICE Count I of the
second amended complaint. It DENIES in PART the defendants’ motion
to dismiss Count II of the amended complaint.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and to enter a separate judgement order.
DATED: August 25, 2016
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
17
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