United States District Court, S.D. New York
August 17, 2005.
THOMAS J. GERMANO, Plaintiff,
CORNELL UNIVERSITY, NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS, EDWAR J. LAWLER, RONALD SEEBER, and ANN W. MARTIN, Defendants.
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM & ORDER
Plaintiff Thomas J. Germano commenced this action against the
above-named Defendants, claiming that they discriminated against
him on the basis of age in the course of his employment and
termination thereof, and that the Defendants' termination of his
employment was a breach of contract. Plaintiff asserts claims
under the Age Discrimination in Employment Act ("ADEA"), the New
York State Human Rights Law (NYSHRL), and the New York City Human
Rights Law ("NYCHRL"); as well as for common law breach of
contract and breach of implied-in-fact contract. Defendants
Cornell University, New York State School of Industrial and Labor
Relations ("ILR School"), Edward J. Lawler, Ronald Seeber, and
Ann W. Martin move pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure to dismiss Plaintiff's NYCHRL, contract, and
implied contract claims for failure to state a claim upon which
relief can be granted. Defendants also move to dismiss Plaintiff's New York City Human Rights Law claim
for lack of subject matter jurisdiction pursuant to F.R.C.P.
12(b)(1). For the reasons stated below, Defendants' motion to
dismiss is GRANTED IN PART AND DENIED IN PART.
A. Plaintiff's Employment at the ILR School
Plaintiff began working at the ILR School on October 7, 1976.
(Compl. ¶ 1).*fn1 The ILR School, a division of Defendant
Cornell University, offers the nation's only four-year
undergraduate program in industrial and labor relations. The
school has several extension offices in the State of New York,
including Buffalo, Rochester, Albany, Ithaca, New York City, and
Long Island, which is where Plaintiff worked as the Director for
the entire duration of his employment from October 7, 1976 until
his termination on January 13, 2003. (Id. ¶¶ 3, 12)
Plaintiff began his employment at the ILR School as an
Extension Associate I, which is how the ILR School refers to
instructors who work at its Extension offices. (Compl. ¶ 13).
Extension associates have professional qualifications comparable to those of professors and associate professors at Cornell.
(Id.). In 1988, Plaintiff "was promoted to Senior Extension
Associate II, which was the ILR School Extension's version of
"tenure." (Id. ¶ 14). At that time, ILR School Associate Deans
Lois Gray and Ronald Seeber told him that "once Cornell and the
ILR School appointed him a Senior Extension Associate II, he had
the equivalent of tenure, and, accordingly, could not be fired
other than for cause or budgetary exigencies whereby the school
was unable to continue paying his salary. (Id. ¶ 16).
B. Harassment and Termination of Plaintiff
Beginning in 2000, Cornell, the ILR School, and Defendant Ann
Martin, associate Dean of the ILR School until Cornell terminated
her position in December 2002,*fn2 allegedly tried for two
and half years to force him to retire by constant pressure,
threats, and harassment regarding his age. (Compl. ¶ 20). For
example, Martin first suggested that Plaintiff retire during a
meeting on November 2, 2000, and allegedly repeated several times
at this meeting that he should consider retiring and that "it's
time" for him to retire. (Id. ¶ 21). Plaintiff next saw Martin
at a meeting in New York City on February 6, 2001, where she
allegedly asked him if he was considering her suggestion to
retire. (Id. ¶ 22). Subsequently, Plaintiff ate dinner in Manhattan with Martin
on April 18, 2001 where she again allegedly asked Plaintiff if he
planned on retiring. Moreover, at that same dinner, she
supposedly "threatened to find someone else to do his work and
that he should begin some serious retirement planning." (Id. ¶
Thereafter, at a District Directors meeting in New York City on
December 5, 2001, Martin announced that a committee would meet
the next day to discuss the future of the Long Island office and
allegedly told Plaintiff specifically that his attendance was not
necessary, although he had been the Director of that Office for
nearly 25 years. (Compl. ¶ 26). On December 18th, Martin and
Plaintiff met at JFK Airport where she allegedly told Plaintiff
his office would have to produce savings or increased income in
the amount of $20,000 to $25,000 by June 2002 and function with
one less employee. Additionally, Plaintiff claims Martin
"threatened to break the lease and close the Long Island Office
either partially or completely." (Id. ¶ 27).
From January to June 2002, Plaintiff reduced the Long Island
office's operating costs by approximately $25,000 while working
with one less employee. (Id. ¶ 28). Meanwhile, on January 23,
2002, Martin allegedly told Plaintiff that if he would relinquish the position of Director she would stop harassing him to retire.
(Id. ¶ 30).
On October 4, 2002, Martin met with Plaintiff at the Long
Island office and informed him that Defendant Edward Lawler, Dean
of the ILR School, had decided to close the Long Island Office to
save money. (Id. ¶ 31). She allegedly stressed that the
decision to close the Office was not made as a result of poor
performance, and that in fact the office "was overachieving
despite being understaffed." (Id.). Thereafter, during a
conference call between ILR School Deans and Directors on October
9, Lawler allegedly told Plaintiff that ILR needed to save
$500,000 and that some people might need to retire. (Id. ¶ 32).
During this conversation, Martin supposedly said, "I know Tom
Germano is sitting quietly in a great deal of pain, and I thank
you for that, Tom. I'm sure others are feeling for you as I am."
On October 24, 2002, Plaintiff allegedly received a letter from
Lawler stating that Plaintiff's employment had been terminated
for financial reasons effective July 1, 2002. (Id. ¶ 33). The
letter did not mention performance or managerial problems.
(Id.). The only other employee at the Long Island Extension
office whose employment was terminated was a woman over 70 years
old with only 2½ years service to Cornell while the other employees, all junior and younger than Plaintiff, were
allegedly offered employment with the ILR School's New York City
district office. (Id. ¶ 34). However, after the Long Island
Federation of Labor and the Long Island Labor Advisory Board
threatened to lobby for an alternative provider of labor
education in Long Island, the Long Island Office remained open
and Plaintiff kept his job as Director. (Id. ¶ 39-40).
On December 23, 2002, Plaintiff sent an email to Lawler seeking
confirmation that the Long Island office's current level of
staffing would be retained and that a vacant labor studies
support position could be filled. (Compl. ¶ 47). According to
Jack Caffey, the President of the Long Island Federation of
Labor, Plaintiff allegedly had the authority to hire up to the
current level of staff working at the Long Island Office at that
time, plus fill the labor studies support position that had been
vacant. (Id. ¶ 48). On December 24, 2002, Plaintiff sent a
letter to Margaret Sipser Leibowitz, an ILR School employee who
was teaching ILR classes in Ithaca in the fall of 2002, and
called Tina Hament "to see if either or both would fill the one
vacant position and one soon-to-be vacant position in the Long
Island Office, respectively." (Id. ¶ 49). Plaintiff claims both
prospective employees were aware that any offer of employment
Plaintiff made was contingent upon approval from Cornell.
(Id.). A copy of the letter Plaintiff sent to Ms. Leibowitz was sent
simultaneously to Lawler. (Id.).
Then, on January 3, 2003, Lawler responded to Plaintiff's
December 23, 2002 email, and confirmed that Plaintiff had
authority to keep current labor staffing, including sufficient
staff support. (Compl. ¶ 50). Three days later, Plaintiff
contacted Lawler's office on to confirm that he had authority to
fill the labor staff support position that had been vacant since
April 2002. (Id. ¶ 51). Later that same day, an employee in
Lawler's office emailed Plaintiff and informed him that Lawler
would not permit him to fill this position and Lawler would make
no specific decisions about staffing in the Long Island office
until the needs assessment for statewide labor was completed.
(Id. ¶ 52).
On January 13, 2003, Plaintiff met Defendants Seeber and
Lawler. (Compl. ¶ 53). At this meeting, these Defendants gave
Plaintiff a letter, which stated that his employment with the ILR
School was terminated because he had offered Ms. Leibowitz a
C. Procedural History of the Present Action
On February 13, 2003, Plaintiff filed a charge of
discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging that Defendants
terminated his employment because of his age in violation of the
ADEA. (Compl. ¶ 8; Affidavit of Nelson E. Roth ["Roth Aff."], Ex.
2 (Charge of Discrimination)). On September 8, 2003, the EEOC
dismissed Plaintiff's administrative charge, and informed him
that he could file a private ADEA lawsuit in United States
District Court within 90 days without a "right-to-sue" letter.
(Compl. ¶ 9; Roth Affidavit, Ex. 3 (Letter from EEOC to
Plaintiff, dated September 8, 2003)).
Thereafter, on December 9, 2003, Plaintiff commenced the
present action by filing his Complaint, alleging five causes of
action: (1) an ADEA claim for employment
discrimination-specifically, on-the-job harassment and eventual
termination on the basis of Plaintiff's age (Compl. ¶ 62); (2)
a New York State Human Rights Law Claim for age discrimination in
employment based on the same conduct (id. ¶ 67); (3) a New York
City Human Rights Law claim for age discrimination in employment
(id. ¶ 72); (4) a breach of contract claim for allegedly
terminating Plaintiff without cause in violation of an alleged
contract under which he had life tenure, (id. ¶¶ 16, 77-79);
and (5) a breach of implied-in-fact contract for terminating
Plaintiff despite Cornell and the ILR School's alleged prior
treatment of Senior Extension Associate II's as tenured. (Id. ¶
86). Defendants now move to dismiss the latter three claims pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief may granted.
A. Rule 12(b)(1) Dismissal
Defendants move to dismiss Plaintiff's NYCHRL claim pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction. However,
because this court has original federal question jurisdiction
over plaintiff's federal ADEA claim under 28 U.S.C. § 1331, and
because the NYCHRL claim arises out of the "same nucleus of
operative facts" as the ADEA claim, the Court clearly has
supplemental subject matter jurisdiction over this latter claim
under 28 U.S.C. § 1367(a). United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Promisel v.
First American Artificial Flowers, 943 F.2d 251, 254 (2d Cir.
1991) (noting that § 1367(a) codified the availability of pendant
jurisdiction as set forth in Gibbs), cert. denied,
502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Accordingly,
Defendants' Rule 12(b)(1) motion is wholly without merit.
B. Rule 12(b)(6) Dismissal
In deciding a Rule 12(b)(6) motion, the Court must read the
complaint generously, accepting as true all factual allegations therein and drawing all reasonable inferences in favor of the
plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir. 1995); Mills v. Polar Molecule Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is only proper when "it
appears beyond doubt that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Chance
v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957)).
Because a Rule 12(b)(6) motion is used to assess the legal
feasibility of a complaint, a court should not "assay the weight
of the evidence which might be offered in support thereof."
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
Rather, consideration of a Rule 12(b)(6) motion is limited to the
factual allegations in the complaint, documents attached to the
complaint as exhibits or incorporated in it by reference, to
matters of which judicial notice may be taken, or to documents
either in plaintiff's possession or of which plaintiffs had
knowledge and relied on in bringing suit. Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d
Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561 (1992)). 1. NYCHRL Claim
Under the New York City Human Rights Law, it is unlawful for an
employer to discriminate against or discharge an employee on the
basis of his or her age. N.Y.C. Admin. Code § 8-107(a). Both New
York State law and the New York City Administrative Code limit
the applicability of the NYCHRL to acts occurring within the
boundaries of New York City. See N.Y. Gen. Mun. Law § 239-s
(1999); N.Y.C. Admin. Code § 2-201 (2003). Consequently, in order
to state a claim under the NYCHRL, all "plaintiffs must allege
that the defendants intentionally discriminated against them
within New York City." Casper v. Lieberbaum & Co., Inc., No. 97
Civ. 3016, 1998 WL 150993 at *4 (S.D.N.Y. Mar. 31, 1998).
"To determine the location of the discrimination, courts have
looked to the location of the impact of the offensive conduct."
Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999
WL 796172 at *16 (S.D.N.Y. Sept. 30, 1999) (citing Casper, 1998
WL 150993 at *5) (emphasis added). In Casper, plaintiffs
worked in Garden City, and the alleged gender discrimination
occurred over an interoffice microphone system from New York City
to Garden City while plaintiffs were in Garden City. Casper,
1998 WL 150993 at *5. Judge Koeltl dismissed the case because the
comments impacted plaintiffs solely at the Garden City office.
Id. "Plaintiff must show more than the happenstance that a defendant has an office in New York City."
Id. at *4 (citing Lightfoot v. Union Carbide Corp., No. 92
Civ. 6411, 1994 WL 184670 at *5 (S.D.N.Y. May 12, 1994), aff'd,
110 F.3d 898 (2d Cir. 1997)).
Defendants argue that Plaintiff cannot as a matter of law
maintain his NYCHRL claim because the alleged discrimination did
not take place in New York City. (Def. Mem. Law at 7-8; Def.
Reply at 1-2). Plaintiff alleges in his Complaint that Defendants
discriminated against him at four meetings and dinners that took
place in New York City at which Martin harassed and pressured him
to retire. Assuming such conduct constitutes discrimination,
Plaintiff still only felt the impact of that discrimination in
his place of occupation, Long Island, not New York City. See
Salvatore, 1999 WL 796172 at *17 (finding that alleged
"isolated incidents" of sexual and racial harassment occurring in
New York City did not establish that the "whole or substantial
part" of the alleged employment discrimination took place in New
York City because the allegedly hostile work environment created
by such incidents was in Westchester County-plaintiffs' place of
employment not New York City).
The facts of the present case mirror those in Salvatore. Like
the Plaintiff here, the Salvatore plaintiffs were employed
outside of New York City. Furthermore, the Salvatore plaintiffs were not subject to any adverse employment action, such as
termination or denial of overtime pay, benefits or promotions, in
New York City. 1999 WL 796172 at *17. Instead, the plaintiffs
only alleged that defendant created a hostile working environment
by making sexually suggestive and racial harassing remarks and
unwanted sexual advances during a company outing in New York City
and one of plaintiffs' visits to defendant's home in New York
City. Id. at * 15. Ultimately, the court agreed with the
defendant that these isolated incidents impacted plaintiffs'
employment only in Westchester County their place of employment
not New York City, and dismissed their NYCHRL claim under Rule
12(b)(6). Id. at *15-17. Thus, to the extent that the present
Plaintiff's NYCHRL claim rests on the aforementioned four
incidents of harassment by Martin in New York City, it cannot
survive Rule 12(b)(6) dismissal.
Plaintiff in turn argues that because the January 13, 2003
meeting at which he was finally terminated took place in New York
City, this case is analogous to Launer v. Buena Vista Winery,
916 F.Supp. 204 (E.D.N.Y. 1996), in which the district court
found that the plaintiff who had been terminated at a meeting in
New York City and had discriminatory remarks faxed to him at his
New York City phone number had suffered discrimination in New
York City. 916 F.Supp. at 214; (Pl. Mem. at 6-7). However, Plaintiff's Complaint makes no mention of the fact that such
termination meeting occurred in New York City. Moreover, even if
the Court takes notice of such fact, the present case is still
distinguishable from Launer because while the plaintiff in
Launer was terminated in New York City, he also maintained an
office for the defendant employer in New York City and attended
periodic regional company sales meetings there. Launer,
916 F.Supp. at 206. In contrast, Plaintiff did not maintain an office
or any other workspace in New York City, nor did he perform any
of his job-related duties there.
Instead, Plaintiff's situation is more analogous to the
plaintiff in Lightfoot v. Union Carbide Corp.. In Lightfoot,
the plaintiff worked in Connecticut, and he occasionally brought
work home with him to his residence in New York City. In
addition, the defendants in that case approved the plaintiff's
termination at a meeting in New York City. Nevertheless, Judge
Patterson granted summary judgment in favor of the defendant on
the plaintiff's NYCHRL claim, finding that the impact of
defendant's alleged adverse employment action on the plaintiff
occurred while the latter was employed in Connecticut.
Lightfoot, 1994 WL 184670 at *5. Accordingly, in the present
case, Plaintiff has failed to allege that Defendants' adverse
employment actions impacted him in New York and therefore cannot state a viable
cause of action under the NYCHRL.
2. Breach of Contract
Plaintiff's fourth cause of action alleges that in terminating
him from his position as a Senior Extension Associate II "without
cause", Defendants breached their contract with him under which
he allegedly was guaranteed life tenure and could only be fired
"for cause and/or budgetary exigencies." (Compl. ¶¶ 78-79). Such
contract, which was allegedly oral rather than written, was in
turn supposedly based on Defendants Gray and Seeber's alleged
representation to Plaintiff that he had the "equivalent of
tenure" upon his appointment as a Senior Extension Associate II,
and the policies of Cornell and the ILR School, under which a
Senior Extension Associate II is allegedly treated as "a tenured
faculty member." (Id. ¶¶ 16-17, 77).
However, the Cornell Faculty Handbook, which was submitted in
conjunction with Defendants' Motion to Dismiss (see Affidavit
of Nelson E. Roth ["Roth Aff."], Ex. 17) and which the Court may
consider because it contains some of the "policies of Cornell"
referred to in the Complaint (see Compl. ¶ 77), directly
contradicts Plaintiff's version of the contract terms as set forth in the Complaint.*fn3 The Handbook in fact explicitly
provides that rather than enjoying life tenure, "Senior Extension
Associates are appointed for terms of up to five years and may be
reappointed on the basis recommendations by the department and
the appropriate extension director and deans(s)." (Roth Aff., Ex
17 at 33). Thus, the Complaint's allegations do not establish the
existence of an oral contract for tenure between Defendants and
Plaintiff. See Matusovsky v. Merrill Lynch,
186 F.Supp.2d 397, 400 (S.D.N.Y. 2002) ("If a plaintiff's allegations are
contradicted by ? a document [attached to or incorporated by
reference into the complaint], those allegations are insufficient
to defeat a motion to dismiss."); In re Bristol-Myers Squibb
Sec. Litig., 312 F.Supp.2d 549, 555 (S.D.N.Y. 2004) ("The court
need not accept as true an allegation that is contradicted by
documents on which the complaint relies.") (citation
omitted).*fn4 Accordingly, Plaintiff's breach of contract claim must be
3. Breach of an Implied-in-Fact Contract
Plaintiff also alleges that even if there was no express
employment contract granting him tenure, the parties had entered
into an implied-in-fact contract under which he had tenure.
(Compl. ¶ 83). This implied-in-fact contract, Plaintiff claims,
arises from Defendants' conduct, the treatment of other Senior
Extension Associate II's as having tenure, and the policies of
Cornell and the ILR School. (Id. ¶¶ 84-86).
"A contract implied in fact may result as an inference from the
facts and circumstances of the case, although not formally stated
in words . . . and is derived from the presumed intention of the
parties as indicated by their conduct." Jemzura v. Jemzura,
36 N.Y.2d 496, 503-04, 369 N.Y.S.2d 400 (1975) (internal quotations
and citations omitted). While an implied in fact contract is
equally binding as an expressed contract, id., and, like an
express contract, requires mutual assent evincing the intention
of the parties to be bound by specific contractual terms, see
Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94, 699 N.Y.S.2d 716
(1999) (citations omitted), it "rests upon the conduct of the parties and not their verbal or written words."
Parsa v. New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27 (1984).
As an initial matter, Defendants argue that "[a] plaintiff may
not rely on an implied-in-fact contract where an express contract
governs the subject matter." (Def. Mem. at 10). While Defendants
have correctly stated the law, see Stissi v. Interstate &
Ocean Transp. Co. of Philadelphia, 814 F.2d 848, 851 (2d Cir.
1987) ("It is an elementary principle of contract law that, where
there exists an express contract for compensation, an action
outside that contract will not lie."); Muhitch v. St. Gregory
the Great Roman Catholic Church and School, 239 A.D.2d 901,
659 N.Y.S.2d 679, 680 (4th Dep't 1997) ("Where, as here, an express
contract exists between the parties concerning the same subject
matter, there may be no recovery upon a theory of implied
contract."), such rule has no application in the present case
where, as stated above, there was no express employment contract
giving Plaintiff tenure.
Nevertheless, Plaintiff has failed to allege adequately the
existence of an implied-in-fact contract between him and
Defendants giving him lifetime tenure in employment. The
Complaint's general reference to Cornell and the ILR School's
"conduct indicat[ing] to [Plaintiff] that he was a tenured
faculty member" (Compl. ¶ 84) is too vague to overcome a Rule 12(b)(6) motion. See Electronics Communications Corp v.
Toshiba, 129 F.3d 240, 243 (2d Cir. 1997) (holding that
conclusory statements in a complaint will not substitute for
sufficient factual allegations when trying to overcome a motion
to dismiss). Moreover, as discussed above, his allegations that
granting him tenure was consistent with Defendants' treatment of
other Senior Extension Associate II's and with Cornell and ILR
School Policy are directly contradicted by the Cornell Faculty
Handbook itself and thus carry no weight with the Court.
Accordingly, the Court also finds that Plaintiff has failed to
a state viable claim for breach of implied-in-fact contract.
C. Leave To Amend
Having found that Plaintiff's NYCHRL, contract, and
implied-in-fact contract claims must be dismissed pursuant to
Rule 12(b)(6), the Court must next determine whether Plaintiff
should be granted leave to amend its Complaint to cure the
defects in these three causes of action. Under F.R.C.P. 15(a),
leave to amend "shall be freely given when justice so requires."
Fed.R.Civ.P. 15(a). However, although "[i]t is the usual practice
upon granting a motion to dismiss to allow leave to replead,"
Cortec Industries, Inc., 949 F.2d at 48 (citing Ronzani v.
Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990), a court may dismiss without leave to amend when amendment would be futile.
Oneida Indian Nation of New York v. City of Sherrill,
337 F.3d 139, 168 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178,
182,83 S.Ct. 227, 230, 7 L.Ed.2d 385 (1962)). Ultimately, the
decision to grant leave to amend a complaint rests within the
discretion of the district court. Foman, 371 U.S. at 182,
83 S.Ct. at 230.
With respect to Plaintiff's NYCHRL claim, no additional amount
of pleading will establish that Plaintiff felt the impact of the
alleged discrimination in New York City. After all, Plaintiff's
office was in Long Island. Even if Plaintiff alleges more acts of
discrimination during meetings in New York City, the impact of
such discrimination was still on Plaintiff's employment in Long
Island. Similarly, as discussed above, even if Plaintiff alleges
the termination meeting was in New York City, the impact of that
meeting on plaintiff's employment was also in Long Island. Thus
amendment of this claim would be futile. The same can also be
said for Plaintiff's contract and implied-in-fact contract claims
because no amount of additional allegations in the Complaint
would change the fact that Cornell and the ILR's School's
employment policy with respect to Senior Extension Associates, as
expressly reflected by the Faculty Handbook, was to offer them
5-year employment terms rather than lifetime tenure.
Accordingly, leave to amend is denied with respect to all three
of Plaintiff's dismissed claims.
For the reasons stated above, Defendants' Motion to Dismiss
under Rule 12 (b) (1) is DENIED, but their Motion to Dismiss the
three causes of action under Rule 12 (b) (6) is GRANTED.
Accordingly, Plaintiff's New York City Human Rights Law, breach
of express contract, and breach of implied-in-fact contract
claims are DISMISSED WITH PREJUDICE. Defendants are directed to
answer Plaintiff's two remaining causes of action within twenty
(20) days of the date of this Order. Upon joinder of the
remaining issues, a Rule 16 conference shall be scheduled by the
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