Rozek v. Ampro Computers, Inc.

¶1ORDER

¶2This is an employment-discrimination case.

¶3Plaintiff Jerome Rozek alleges his former employer, Ampro Computers, fired him because of his age. He brings claims against Ampro and its Vice President, Elizabeth Campbell, under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621et seq., Ohio’s anti-discrimination statutes, and Ohio common law. Jurisdiction is proper under 28 U.S.C. §§ 1331,1332(a)(1), and 1367(a).

¶4Pending is defendants’ motion to dismiss all but Rozek’s ADEA claim. (Doc. 10). For the following reasons, I grant the motion.

¶5Background

¶6Rozek worked at Ampro from December, 2011, to April 8, 2013, when the company terminated his employment. On that date Rozek was sixty-seven years old.

¶7While in Ampro’s employ, Rozek, according to his complaint, “was subjected to a hostile work environment” because of his age. (Doc. 1 at ¶ 13). His coworkers “engaged in conduct that was disrespectful, emotionally abusive, and intimidating relative to Rozek’s age.” (Id. at ¶ 14).

¶8Rozek complained to Campbell, but she responded with “false accusations relative to Rozek’s work product, performance, and his competency to complete tasks.” (Id. at ¶ 16). According to Rozek, Ampro then fired him for “complaining about the hostile work environment.” (Id. at ¶ 22).

¶9In May, 2013, Rozek filed a charge with the Ohio Civil Rights Commission (OCRC), alleging Ampro subjected him “to age remarks” and “discharged [him] due to [his] age, 67, in violation of the [ADEA].” (Doc. 12-1 at 1).

¶10Rozek then filed this suit in December, 2013. Besides raising an ADEA claim, Rozek also alleges Ampro and Campbell violated Ohio’s prohibitions on age-based discrimination in employment.

¶11Count two of the complaint alleges Am-pro discriminated against Rozek on the basis of age, in violation of O.R.C. § 4112.02. In count three, Rozek maintains Ampro violated O.R.C. § 4112.14 by firing him and replacing him with a younger employee.

¶12*921Rozek brings counts four and five under § 4112.99, alleging Ampro fired him for complaining about the hostile work environment.

¶13Finally, count six alleges Ampro’s conduct and that of its personnel amounted to intentional infliction of emotional distress.

¶14Discussion

¶15Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss counts two through six of the complaint, arguing: 1) Rozek’s decision to file a charge with the OCRC precludes him from suing under Ohio’s age-discrimination statutes; 2) the state-law discrimination claims are untimely; and 3) Rozek’s claim for intentional infliction of emotional distress is implausible.

¶16“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

¶17“This standard demands that the factual allegations raise a right to relief above the speculative level and nudge the claims across the line from conceivable to plausible.” Erie Cnty. v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir.2012). Although the plausibility standard “is not akin to a probability requirement,” a plaintiff must plead “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, supra,556 U.S. at 678,129 S.Ct. 1937.

¶18A. Ohio Age-Discrimination Claims

¶191. Prohibitions on Age-Based Employment Discrimination

¶20Like its federal counterpart, Ohio law forbids employers to discriminate against current and prospective employees on the basis of age.

¶21Section 4112.02 of the Ohio Revised Code establishes the basic prohibition against age-based discrimination. That section makes it “an unlawful employment practice” for any employer, “because of the ... age ... of any person, to discharge without just cause ... or otherwise to discriminate against that person with respect to ... tenure, terms, conditions, or privileges of employment.]” O.R.C. § 4112.02(A).

¶22Another provision in the Revised Code, § 4112.14, prohibits a more specific type of discrimination, barring employers from, inter alia, “dischargflng] without just, cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job[.]” O.R.C. § 4112.14(A).

¶23A person seeking redress for either type of discrimination may file a civil lawsuit or an administrative charge with the Ohio Civil Rights Commission.

¶24Three sections of the Revised Code establish a right to sue for age-based discrimination.

¶25Section 4112.02(N) creates a right to sue for the age-discrimination practices that- § 4112.02(A) prohibits. In turn, § 4112.14(B) creates a right to sue for the more specific age-discrimination practices that § 4112.14(A) forbids. Finally, § 4112.99 provides that “[w] ho ever violates [Chapter 4112] is subject to a civil action for damages, injunctive relief, or any other appropriate relief.”

¶26The right to pursue administrative remedies is in § 4112.05. That provision allows an aggrieved person to “file a charge with the [OCRC] alleging that another person has engaged or is engaging in an unlawful discriminatory practice.” O.R.C. § 4112.05(A).

¶272. Election-of-Remedies Requirement

¶28Ohio law is mostly clear that these remedies are mutually exclusive: an employee *922aggrieved by age-based discrimination may pursue a judicial or an administrative remedy, but not both. Flint v. Mercy Health Partners of SW Ohio, 940 F.Supp.2d 743, 748 (S.D.Ohio 2013); Senter v. Hillside Acres Nursing Ctr., 335 F.Supp.2d 836, 848 (N.D.Ohio 2004).

¶29Sections 4112.02(N) and 4112.14(B) contain explicit élection-of-remedies clauses, barring a person who sues under either statute from also filing an administrative charge. See O.R.C. § 4112.02(N) (“a person who files a civil action under this division is barred ... from instituting a civil action under section 4112.14 ... and from filing a charge with the [OCRC] under section 4112.05”); O.R.C. § 4112.14(B) (“any person instituting a civil action under this section is ... barred from instituting a civil action under division (N) of section 4112.02 ... or from filing a charge with the [OCRC] under section 4112.05”).

¶30Likewise, a person who files with the OCRC may not thereafter sue under either § 4112.02(N) or § 4112.14(B). O.R.C. § 4112.08.

¶31Given Rozek’s filing with the OCRC, the plain language of § 4112.08 bars him from filing suit under either § 4112.02(N) or § 4112.14(B). I will therefore dismiss counts two and three with prejudice.1

¶32In contrast to the provisions just discussed, § 4112.99 “has no similar express election of remedies language.” Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 512 (6th Cir.2001). Moreover, the Ohio Supreme Court has not yet addressed whether filing a charge with the OCRC bars a later suit for age-discrimination under § 4112.99. Neal v. Franklin Plaza Nursing Home, 2009 WL 1156706, *3 (Ohio App.).

¶33It is therefore an open question whether a litigant like Rozek, who previously filed a charge with the OCRC, may sue his employer for age-based discrimination under § 4112.99.

¶34To resolve that question, I apply Ohio law “in accordance with the then controlling decision of the highest state court.” Ziegler, supra,249 F.3d at 517.

¶35Because there is no Ohio Supreme Court decision on point, I must “ascertain from all available data ... what the [Ohio Supreme Court] would decide if faced with the issue.” Id.I may not “disregard a decision of the state appellate court on point, unless [I am] convinced by other persuasive data that the highest court of the state would decide otherwise.” Id.

¶36a. Ohio Court of Appeals Precedent

¶37I begin with the leading decision on this question, Balent v. Nat’l Revenue Corp., 93 Ohio App.3d 419, 638 N.E.2d 1064 (1994).

¶38In that case, two plaintiffs who had filed charges with the OCRC sued their employer for age discrimination. Id. at 1064. Plaintiffs brought suit under § 4112.99, alleging the employer’s conduct violated the prohibition on age discrimination found in § 4112.02(A).

¶39The common pleas court dismissed the claims, holding that “since [plaintiffs] had elected to pursue their claim with the OCRC, they were barred from pursuing a judicial remedy.” Id.

¶40On appeal, the Tenth District Court of Appeals held the election-of-remedies re*923quirement applies to age-discrimination suits under § 4112.99.

¶41The court “admitted] that a compelling ease may be made for either position on this issue[.]” Id. at 1065. But in the appellate court’s view, the better rule was that a litigant bringing an age-discrimination claim must elect between a judicial or an administrative remedy:

We reach this conclusion primarily because of our belief that the carefully constructed requirements of election of remedy set forth, in some detail, in R.C. 4101.17 [2]and 4112.02(N), and reiterated in 4112.08, can only be taken to express the legislature’s unambiguous intention to require an election of a single administrative or statutory remedy when bringing a claim for age discrimination. If R.C. 4112.99 fails to explicitly perpetuate the scheme set up by prior statutes addressing age discrimination, it is equally lacking in explicit intent to repeal the previously established statutory scheme ... [T]he specific and detailed articulation of available remedies and interaction between applicable statutes addressing age discrimination claims must be taken to prevail over the broad terms of R.C. 4112.99.

¶42Id. at 1065.

¶43Several cases besides Balenthave also held the election requirement applies to age-discrimination suits under § 4112.99. Vinson v. Diamond Triumph Auto Glass, 149 Ohio App.3d 605, 609, 778 N.E.2d 149 (2002); Neal, supra, 2009 WL 1156706, *3-4.

¶44b. Federal Precedent

¶45The federal district courts in Ohio that have addressed this question have reached conflicting results.

¶46In Senter, supra,335 F.Supp.2d at 851-852, Judge Katz ruled the election-of-remedies bar precludes a litigant who has filed an administrative charge alleging age discrimination from later filing suit under § 4112.99.

¶47To reach that conclusion, Senterfirst relied on “[t]he general consensus of Ohio appellate courts ... that the election of remedies scheme for age discrimination claims in Ohio applies to claims brought under [O.R.C.] § 4112.99.” Id. at 849.

¶48Senteralso gave weight to Smith v. Friendship Village of Dublin, Ohio, Inc., 92 Ohio St.3d 503, 751 N.E.2d 1010 (2001), where the Ohio Supreme Court emphasized, in dicta, that victims of age-discrimination must elect between judicial and administrative remedies.

¶49The question before the court in Smithwas whether filing an administrative charge alleging handicap discrimination forecloses a later suit for such discrimination under § 4112.99.

¶50Answering that question in the negative, the Ohio Supreme Court noted that, unlike the statutes prohibiting age-based discrimination, the statute forbidding handicap-based discrimination did not contain an election-of-remedies provision. Smith, supra,92 Ohio St.3d at 506, 751 N.E.2d 1010.

¶51This comparison led the court to recognize that “the General Assembly was aware that individuals might attempt to commence both administrative and judicial proceedings” when seeking redress for employment discrimination. Id.Nevertheless, the court observed, the General Assembly had prohibited individuals from pursuing both avenues of relief “in the context of age discrimination only.” Id.

¶52Accordingly, because no statute required a person filing a handicap-discrimination *924claim to elect between judicial and administrative remedies, “both remedies [are] available for [that and] other forms of discrimination.” Id.

¶53Given Smith’s emphasis on the need to elect remedies when pursuing an age-discrimination claim, and the intermediate appellate precedent requiring an election of remedies, Judge Katz predicted in Senterthat:

were the issue before the Ohio Supreme Court, that court would find § 4112.99 age discrimination claims subject to Chapter 4112’s election of remedies scheme. A plaintiff who first files an age discrimination charge with the OCRC therefore may not bring a civil lawsuit under any provision of Ohio Revised Code Chapter 4112.

¶54Senter, supra, 335 F.Supp.2d at 851.3

¶55The previous year, Judge Frost of the Southern District of Ohio came to the opposite conclusion in his comprehensive opinion in Sterry v. Safe Auto Ins. Co., 2003 WL 23412974 (S.D.Ohio).

¶56The court in Sterryacknowledged the Ohio appellate decisions holding that the election-of-remedies bar applied to age-discrimination claims under § 4112.99. Id. at *8-9. But Sterrydetermined “the Ohio Supreme Court would decide the election issue differently[.]” Id. at *9.

¶57Sterrywas particularly critical of the Court of Appeals’s rationale in Balent: that the inclusion of a detailed election-of-remedies requirement in other provisions of Chapter 4112 was strong evidence of the General Assembly’s intent to extend that requirement to suits under § 4112.99.

¶58On this point Sterryobserved that, even though the General Assembly amended § 4112.99 after creating Chapter 4112’s election-of-remedies provisions4, it did not include any election requirement in § 4112.99. Sterry, supra, 2003 WL 23412974, *9. In Sterry’s view, the state court’s rationale unfairly bound “the legislative body to an unchanging intent without any indication that adherence to that intent existed[.]” Id.

¶59Judge Frost was also unpersuaded that the Ohio Supreme Court’s decision in Smith, on which Judge Katz relied in Sen-ter, shed much light on the issue.

¶60The court in Sterryacknowledged Smith’s language that “ ‘the General Assembly has specifically provided that individuals alleging age discrimination must choose between an administrative or judicial action.’ ” Sterry, 2003 WL 23412974, *7 (quoting Smith, supra,92 Ohio St.3d at 506, 751 N.E.2d 1010).

¶61However, Sterrypointed out Smithdid not: 1) squarely address whether there is an election requirement for age-based discrimination suits brought under § 4112.99; or 2) say that all age-discrimination claims brought under Chapter 4112 are subject to the election bar. Sterry, supra, 2003 WL 23412974, *7-8.

¶62Finally, Sterryconcluded that imposing an election requirement in a § 4112.99 suit for age discrimination would compromise the “independent” nature of the civil action that exists under § 4112.99. Id. at *11.

¶63Here Judge Frost observed that, in Elek v. Huntington Nat’l Bank, 60 Ohio St.3d 135, 136, 573 N.E.2d 1056 (1991), the Ohio Supreme Court emphasized that the plain *925language of § 4112.99 “yields the unmistakable conclusion that a civil action is available to remedy any form of discrimination identified in R.C. Chapter 4112.” Elekalso characterized an action under § 4112.99 as “an independent civil action to seek redress” for discriminatory practices prohibited by Chapter 4112. Id. at 138, 573 N.E.2d 1056.

¶64Given that language, Judge Frost found imposing an election requirement in a § 4112.99 action “would be to reject Elek’s description of ... § 4112.99 as creating an independent cause of action for ... Chapter 4112 violations; it would mean that there is ultimately no Ohio Rev. Code § 4-112.99 age discrimination claim.” Sterry, supra, 2003 WL 23412974, *13 (emphasis added).

¶65Although Sterrydeclined to require election in an age-discrimination suits under § 4112.99, the court acknowledged its decision rendered the election-of-remedies scheme found in §§ 4112.02, 4112.08, and 4112.14 “toothless.” Id. at *11.

¶66c. The Meyer Decision

¶67Finally, I turn to the Ohio Supreme Court’s decision in Meyer v. United Parcel Serv., 122 Ohio St.3d 104, 106, 909 N.E.2d 106 (2009).

¶68The plaintiff in Meyerfiled an internal grievance after his employer, UPS, discharged him. When UPS’s grievance committee upheld his discharge, plaintiff sued under § 4112.99, alleging UPS fired him because of his age.

¶69UPS moved for summary judgment, arguing a provision of § 4112.14 barred plaintiffs suit. UPS relied on § 4112.14(C), which states a person may not sue for age-based employment discrimination under § 4112.14(B) if the person “has available to [him] the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.” O.R.C. § 4112.14(C).

¶70Plaintiff countered § 4112.14(C) was inapplicable, given that he brought suit under § 4112.99, not § 4112.14.

¶71The common pleas court agreed with UPS and held that, because plaintiff had unsuccessfully grieved his discharge, § 4112.14(C) barred plaintiffs suit.

¶72The appellate court reversed, and the Ohio Supreme Court granted review to decide whether “an age discrimination claim brought under the general language of R.C. 4112.99 is subject to the substantive provisions of R.C. 4112.02 and R.C. 4112.14.” Meyer, supra,122 Ohio St.3d at 106, 909 N.E.2d 106.

¶73In answering that question in the affirmative, the court in Meyerannounced several principles bearing directly on my analysis here.

¶74First, the court characterized § 4112.99 as a “gap-filling provision, establishing civil liability for violations of rights for which no other provisions for civil liability has been made.” Id. at 110, 909 N.E.2d 106.

¶75Second, the court stated “[bjecause age-discrimination claims are specifically addressed in R.C. Chapter 4112, it necessarily follows from [our precedent] that age-discrimination claims are not governed by the general gap-filling provision of R.C. 4112.99.” Id. at 111, 909 N.E.2d 106 (emphasis in original).

¶76Third, the court emphasized that even if a plaintiff sues only under § 4112.99 — and makes no' reference to the other provisions of Chapter 4112 governing age-discrimination claims — the plaintiffs claim still “must be governed by the specific statutory directives in R.C. Chapter 4112” that address age discrimination. Id. at 115, 909' N.E.2d 106.

¶77*926Having established this framework for reconciling § 4112.99 and the statutes respecting age-based employment discrimination, Meyerheld “that R.C. 4112.14(C) must apply to Meyer’s age-discrimination claim,” even though plaintiff brought suit under § 4112.99. Id. at 116, 909 N.E.2d 106.

¶783. Application to Rozek’s Claims

¶79Given the reasoning in Meyer— and the weight of authority from the state and federal courts in Ohio — I conclude the Ohio Supreme Court would hold the election-of-remedies requirements in § 4112.08 bars Rozek from bringing age-discrimination claims under § 4112.99.

¶80Most importantly, Meyeremphasized “R.C. 4112.99 plays no specific role as to age discrimination claims.” Meyer, supra,122 Ohio St.3d at 111, 909 N.E.2d 106. On the contrary, that statute is merely a “gap-filling provision” that is inapplicable when other, more specific provisions of Chapter 4112 address a plaintiffs claim. Cf. McCormick v. AIM Leasing Co., Inc., 2012 WL 5874373, *3 (N.D.Ohio) (“In the context of age discrimination, however, R.C. 4112.99 does not substantively add to what has already been provided in Chapter 4112.”).

¶81These statements undermine a key premise of Sterry, the most persuasive authority on Rozek’s side.

¶82There Judge Frost declined to read an election requirement into § 4112.99 age-discrimination claims, in part because doing so would compromise the independent nature of such a suit. See Sterry, supra, 2003 WL 23412974, *13.

¶83However, a necessary corollary of Meyer, a post -Sterry decision, is that there is no free-standing claim for age discrimination under § 4112.99.

¶84Rather, § 4112.99 has no specific role to play in any age-discrimination suit, given that §§ 4112.02 and 4112.14 deal specifically with age discrimination. Accordingly, an age-discrimination claim brought under § 4112.99 is, for all intents and purposes, a claim under either § 4112.02 or § 4112.14. See Meyer, supra,122 Ohio St.3d at 112, 909 N.E.2d 106. And both types of age-discrimination claims are subject to an election-of-remedies requirement.

¶85Furthermore, while Meyerdid not address the precise issue Rozek’s case raises, there is no material distinction between the two cases.

¶86Like the plaintiff in Meyer, Rozek purports to bring age-discrimination claims under § 4112.99. And as in Meyer, the defense here contends a provision that limits available remedies for an age-discrimination claim, though not expressly included in § 4112.99, bars Rozek from pursuing those claims in a § 4112.99 action.

¶87In these circumstances, I am persuaded the Ohio Supreme Court would hold Rozek cannot avoid the election-of-remedies bar in § 4112.08 by invoking § 4112.99. Indeed, a contrary holding would permit precisely what Meyersaid was impermissible: the “elevat[ion of] R.C. 4112.99 beyond its possible reach for age discrimination claims,” which would make “irrelevant the specific age discrimination statutes” in Chapter 4112. Meyer, supra,122 Ohio St.3d at 115, 909 N.E.2d 106.

¶88Despite their labeling as claims under § 4112.99, counts four and five of Rozek’s complaint have their foundation in §§ 4112.02 and 4112.14. As Meyeremphasized, “all age-discrimination claims must be governed by the specific statutory directives in R.C. Chapter 4112[,]” not by § 4112.99. Id. And those directives include § 4112.08, which expressly bars a person who has filed a charge with the OCRC from bring suit under § 4112.02 or ' § 4112.14.

¶89*927For these reasons, Rozek may not pursue his age-discrimination claims under § 4112.99, and I will dismiss counts four and five with prejudice.5 Given this conclusion, I need not address defendants’ arguments respecting the statute of limitations.

¶90B. Intentional Infliction of Emotional Distress

¶91A claim for intentional infliction of emotional distress “charges that the defendant, by extreme and outrageous conduct, has intentionally or recklessly caused serious emotional distress to him and is subject to liability for such emotional distress[.]” McNeil v. Case W. Reserve Univ., 105 Ohio App.3d 588, 593, 664 N.E.2d 973 (1995).

¶92“[T]o say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an understatement.” Baab v. AMR Servs. Corp., 811 F.Supp. 1246, 1269 (N.D.Ohio 1993). The complained-of behavior must “go beyond all possible bounds of decency,” and must “be regarded as atrocious, and utterly intolerable in a civilized community.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983).

¶93Additionally, the resulting emotional distress “must be so serious that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances.” McNeil, supra,105 Ohio App.3d at 593, 664 N.E.2d 973.

¶94To support his intentional-infliction-of-emotional distress claim, Rozek contends defendants “disrespectfed],” “emotionally abus[ed],” and “intimidatfed]” him because of his age. (Doc. 1 at ¶ 14). Rozek also alleges Campbell “demeaned” him for complaining about the hostile work environment.

¶95However, Rozek does not plead specific examples of the foregoing conduct.

¶96Indeed, the only specific conduct cited in the complaint concerns a settlement letter Ampro’s attorney sent Rozek’s former lawyer. In the letter, Ampro’s counsel made these comments:

• “If Mr. Rozek files suit, there will be no settlement. [Ampro] will take it to final adjudication. Mr. Rozek will be made an example of.”

• “Rozek undeniably perjured himself multiple times” in a hearing before the OCRC.

• “[JJust think what any potential employer will think when they run a background check, or even Google [Rozek’s] name, and find out he filed a frivolous ADA claim against his former employer. He’ll never work again.”

¶97(Doc. 1-2 at 2-3).

¶98Even viewing the allegations in the light most favorable to Rozek, I cannot find he has pled a plausible claim for intentional infliction of emotional distress.

¶99First, Rozek’s allegations concerning Ampro’s disrespectful, abusive, and intimidating conduct in the workplace are entirely conclusory. Because he does not specify how Ampro or its employees disrespected, emotionally abused, and intimidated him, there is no basis in the complaint for inferring Ampro’s conduct was disrespectful, abusive, and intimidating—let *928alone that it “went beyond all possible bounds of decency.” Yeager, supra,6 Ohio St.3d at 375, 453 N.E.2d 666; see also In re Porsche Cars N. Am., Inc., 880 F.Supp.2d 801, 814 (S.D.Ohio 2012) (“Although Rule 8 does not require detailed factual allegations, it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

¶100Second, it is unclear if Rozek may support his claim with the settlement letter, given that Ampro addressed the letter to counsel, not Rozek. However, it seems reasonably foreseeable Rozek’s attorney would at least discuss the letter with Ro-zek, and in all likelihood show it to him. Accordingly, I reject defendants’ argument I may not consider the settlement letter.

¶101That said, the letter is insufficient to establish a plausible claim for intentional infliction of emotional distress.

¶102Even being most charitable to Rozek, the letter shows Ampro’s counsel engaging only in hyperbole and overwrought bluster for the purpose of inducing Rozek to halt further legal proceedings.

¶103Importantly, the letter was written by one party to a contested legal dispute. Given the roughand-tumble, adversarial world of litigation, Rozek (and others) “must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt.” Yeager, supra,6 Ohio St.3d at 375, 453 N.E.2d 666.

¶104Third, I note there are no specific allegations in the complaint supporting a plausible inference that Rozek incurred an “emotional injury which is both severe and debilitating.” Foster v. McDevitt, 31 Ohio App.3d 237, 240, 511 N.E.2d 403 (1986). The claim thus founders on this independent basis, too.

¶105For all of these reasons, I will dismiss count six with prejudice.

¶106Conclusion

¶107For the reasons set forth above, it is

¶108ORDERED THAT defendants’ partial motion to dismiss (Doc. 10) be, and the same hereby is, granted.

¶109So ordered.