The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
A Report and Recommendation (#33) was filed by Magistrate Judge David G. Bernthal in the above cause on September 30, 2008. On October 14, 2008, Plaintiffs, Deborah Nuzzi and Thomas Nuzzi, filed their Objection to the Report and Recommendation (#35). Following this court's careful de novo review of Judge Bernthal's reasoning and Plaintiffs' Objection, this court agrees with and accepts Judge Bernthal's Report and Recommendation (#33). This court notes that Plaintiffs have argued that a motion to dismiss a federal complaint should only be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). However, in Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1969 (2007), the United States Supreme Court stated that Conley's "no set of facts" language "is best forgotten as an incomplete, negative gloss on an accepted pleading standard" and is "not the minimum standard of adequate pleading to govern a complaint's survival." In his Report and Recommendation, Judge Bernthal clearly set out the correct standard under which courts consider the sufficiency of a complaint following the decision of the Supreme Court in Twombly.
IT IS THEREFORE ORDERED THAT:
(1) The Report and Recommendation (#33) is accepted by this court.
(2) Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint (#24) is GRANTED in part and DENIED in part.
(3) Plaintiffs' prayer for relief for their Open Meetings Act claim is stricken as to monetary damages.
(4) Plaintiffs' counsel is allowed fourteen (14) days to show cause why sanctions should not be imposed for filing a FOIA claim which did not include a single allegation related to a possible FOIA claim.
(5) The following claims in Plaintiffs' Third Amended Complaint are hereby dismissed: (1) the FMLA claims in Counts I and II against the individual Defendants in their official capacities; (2) the Whistleblower Act claims in Count IV; (3) the common law retaliation claims in Count V; (4) the FOIA claim in Count VII; (5) the constitutional claims in Count VIII; and (6) the RICO claims in Count IX. Plaintiffs are allowed fourteen (14) days to file an amended complaint to state claims related to the FMLA, the First and Fourteenth Amendments, RICO, the Whistleblower Act, and the FOIA. However, Plaintiffs' common law retaliation claims in Count V are dismissed with prejudice.
(6) The following claims in Plaintiffs' Third Amended Complaint remain pending: (1) the FMLA claims in Counts I and II against Defendant St. George and the individual Defendants in their individual capacities; (2) the Title VII claim in Count III; (3) the Open Meetings Act claim in Count VI; and (4) the breach of contract claims in Counts X and XI (which were not challenged in Defendants' Motion to Dismiss).
(7) This case is referred to Judge Bernthal for further proceedings.
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