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Marinkovic v. Vasquez

United States District Court, D. Maryland

June 16, 2015

MELVIN MARINKOVIC, Plaintiff,
v.
LAYLA VASQUEZ, [1] et al., Defendants.

MEMORANDUM OPINION

GEORGE L. RUSSELL, III, District Judge.

Pending before the Court is Defendants', Mike Huntemann, Layla Vasquez, Ryan Watkins, [2] Diana Rosemond, and John Oliveira[3] (collectively, "Moving Defendants"), Motions to Dismiss Plaintiff's, Melvin Marinkovic, Amended Complaint or, in the Alternative, for Summary Judgment (ECF Nos. 17, 29) and Supplement to Defendants Huntemann, Vasquez, Watkins, and Rosemond's Motion to Dismiss Amended Complaint or, in the Alternative, for Summary Judgment (ECF No. 23). Marinkovic, acting pro se, has filed a series of motions including a Motion for Clerk's Entry of Default (ECF No. 26); Motion to Strike Motions of Defendants (ECF No. 27); Motion/Suggestion for Recusal (ECF No. 28); Motion to Amend Complaint (ECF No. 33); and Motion to Strike Defendant Oliveira's Motion to Dismiss (ECF No. 42). Having reviewed the pleadings and supporting documents, the Court finds no hearing necessary. See CLocal Rule 105.6 (D.Md. 2014). For the reasons outlined below, Marinkovic's Motion to Amend Complaint will be granted in part and denied in part; and his Motion for Clerk's Entry of Default, Motion/Suggestion for Recusal, Motion to Strike Defendant Oliveira's Motion to Dismiss, and Motion to Strike Motions of Defendants will be denied. The Moving Defendants Motions to Dismiss will be granted.

I. BACKGROUND

A. Factual Background

In February 2014, Defendant Falck EMS Holdings, Inc. ("Falck") hired Marinkovic as an Emergency Medical Technician ("EMT"). Marinkovic reported directly to Layla Vasquez, who provided Plaintiff with his assignments and work schedule. Since the beginning of his employment, Marinkovic believed Vasquez treated his female coworkers more favorably. Marinkovic complains that Vasquez permitted females to sit in their personal automobiles to wait for their assignments, while male employees had to wait in the break room; personally provided uniforms to females, but required male employees to get their uniforms from the Operations Manager; and required males employees to use a computer to log patient runs while females employees were allowed to submit paper records.

Further, Marinkovic alleges, in the summer of 2014, Vasquez directed him to drive an ambulance, which he believed had a carbon monoxide leak. After Marinkovic advised Vasquez that he would contact her supervisor, Mr. Huntemann, to report a problem with the vehicle, Vasquez provided Marinkovic with a different ambulance. As a result of this incident, Marinkovic filed a complaint with Falck, the Equal Employment Opportunity Commission ("EEOC"), and the Federal Occupational Safety and Health Act ("OSHA") alleging unequal treatment by Vasquez with respect to her initial denial of allowing him to drive a different ambulance.

In response to Marinkovic's complaint against Vasquez, Diana Rosemond, a Falck human resources representative, conducted an investigation by interviewing all of the male and female EMTs to determine if Marinkovic's allegations could be substantiated. Marinkovic objected to the methods of the investigation because he alleges, as a result of his name being revealed, he was ostracized from the other EMTs after the investigation was complete.

Additionally, on September 26, 2014, Marinkovic left his personal cell phone in an ambulance. He eventually retrieved the phone from the next shift manager. Marinkovic alleges Vasquez sabotaged and damaged his phone requiring him to get a replacement. Finally, in October 2014, Marinkovic chose to resign partly due to reduced hours.

I. Discussion

A. Procedural Posture

On September 29, 2014, Marinkovic filed a Complaint naming Falck A/S, Falck EMS Holdings, and Vasquez as defendants. (ECF No. 1). On October 15, 2014, the Court granted Marinkovic's Motion for Leave to Proceed in Forma Pauperis, and directed him to return to the Clerk the Marshal forms and summonses within twenty-one days from the date of the Order, so the U.S. Marshal could effectuate service of process on Defendants. (See ECF No. 3). Simultaneously, on October 15, 2014, Marinkovic filed a First Amended Complaint adding Defendants Mike Huntemann, Kirkbi, Allan Larsen, John Oliveira, Soren Vuurst, Morton Pederson, Diana Rosemond, The Lundeck Foundation, and Ryan Watkins. (First Am. Compl., ECF No. 6). The First Amended Complaint alleges sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-16 et seq. (2012) (Count I), retaliation in violation of the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105 (2012) (Count II), retaliation in violation of Title VII (Count III), Constructive Discharge (Count IV), Deliberate Failure to Supervise (Count V), Negligent Failure to Supervise (Count VI), Tortious Interference with Economic Relations (Count VII), Tortious Interference with Prospective Advantage (Count VIII), and Conversion (Count IX). (See First Am. Compl.). On November 6, 2014, the Clerk issued Summonses as to Huntemann, Oliveira, Rosemond, Vasquez, and Watkins. Marinkovic filed proof of service as to Huntemann, Rosemond, Vasquez, and Watkins. (ECF No. 8). To date, the Court has no record that Marinkovic returned to the Clerk summonses for, or filed proof of service, as to the remaining Defendants.[4]

On January 6, 2015, Huntemann, Rosemond, Vasquez, and Watkins filed a Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment. (ECF No. 17). The Court extended Marinkovic's deadline for responding to the Motion until March 17, 2015. (ECF No. 22). On February 20, 2015, Huntemann, Rosemond, Vasquez, and Watkins filed a Supplemental Motion to Amend/Correct Motion to Dismiss for Failure to State a Claim or, in the Alternative, For Summary Judgment seeking to clarify their position that Count II of the Amended Complaint is not viable. (ECF No. 23). On March 30, 2015, Marinkovic moved to Strike the Motions of Defendants on the basis that they are (1) untimely; (2) premature; and (3) simply gamesmanship. (See ECF No. 27).

In ruling on a Motion to Supplement, "leave should be freely granted, and should be denied only where good reason exists..., such as prejudice to the [opposing party].'" Reyazuddin v. Montgomery Cnty., Md., No. DKC 11-0951, 2012 WL 5193837, at *3 (D.Md. Oct. 18, 2012) (first alteration in the original) (quoting Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002)). Here, the Supplement does not provide any additional basis for the Motion to Dismiss, but merely provides clarification that the Moving Defendants are supporting their Motion in favor of dismissing Count II on both criteria for the hazardous materials element under the STAA. (See ECF No. 23). Moreover, the Moving Defendants filed their Supplement on February 20, 2015, and sent a copy to Marinkovic by regular and certified mail. (See id. at 2). Marinkovic, therefore, had an additional twenty-two days to oppose the Motion. (See ECF No. 22) (extending Marinkovic's deadline for responding to the Motion to Dismiss or, in the Alternative, for Summary Judgment until March 17, 2015); see also Fed.R.Civ.P. 6(d) (adding three days after the period to respond would otherwise expire, when service is made by mail).

Finally, the Motion for Summary Judgment is not premature. "When matters outside the pleading are presented to and not excluded by the court, [a 12(b)(6) motion to dismiss] shall be treated as one for summary judgment and disposed of as provided in Rule 56." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998) (quoting Fed.R.Civ.P. 12(d)) (internal quotation marks omitted). The United States Court of Appeals for the Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion. First, the "parties [must] be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment;" and, second, "the parties [must] be afforded a reasonable opportunity for discovery." Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)) (internal quotation marks omitted).

Here, the alternative caption of the Moving Defendants' Motion and the attached Declaration are sufficient indicia that the Motion might be treated as one for summary judgment. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). Once notified, however, "summary judgment is appropriate only after adequate time for discovery.'" Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Marinkovic argues consideration of summary judgment is premature because he has not been afforded an opportunity to engage in discovery.

Rule 56(d) (formerly Rule 56(f)) provides that the Court may deny or continue a motion for summary judgment "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition...." Fed.R.Civ.P. 56(d) (emphasis added). A party opposing summary judgment under Rule 56(d), however, may not simply assert that discovery is necessary; the party must file an affidavit that "particularly specifies legitimate needs for further discovery." Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995). "[T]he failure to file an affidavit under Rule [56(d)] is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Id . (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)) (internal quotation marks omitted). Marinkovic has failed to present to the Court an affidavit particularly specifying the reasons that discovery is necessary. For these reasons, Marinkovic's Motion to Strike Motions of Defendants will be denied.

Further, on March 30, 2015, Marinkovic filed a Motion/Suggestion for Recusal. (ECF No. 28). Marinkovic's Motion/Suggestion for Recusal is based entirely on his subjective belief that certain rulings were not favorable to him. (See id.). To succeed on a Motion for Recusal, the alleged bias or prejudice "must, as a general matter, stem from a source outside the judicial proceeding at hand.'" Belue v. Leventhal, 640 F.3d 567, 572-73 (4th Cir. 2011) (citing Liteky v. United States, 510 U.S. 540, 545 n.1 (1994)). Prior judicial rulings, on their own, "almost never constitute a valid basis for a bias or partiality motion." United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008) (internal quotation marks omitted) (citing Liteky, 510 U.S. at 555). Accordingly, recusal is neither warranted nor appropriate, and Marinkovic's Motion/Suggestion for Recusal will be denied.

On April 1, 2015, Defendant John Oliveira filed a Motion to Dismiss Amended Complaint or, in the Alternative, for Summary Judgment adopting and incorporating the arguments set forth by Huntemann, Vasquez, Watkins, and Rosemond. (ECF No. 29). On May 21, 2015, Marinkovic filed a Motion to Strike Oliveira's Motion to Dismiss on the basis that Oliveira's Motion was filed out of time. As discussed above, however, Marinkovic has failed to file proof of service as to Oliveira. "[T]he court has no jurisdiction [over a defendant] until... service is properly accomplished, or is waived by a voluntary appearance by the defendant, either personally or through a duly authorized attorney." Trademark Remodeling, Inc. v. Rhines, 853 F.Supp.2d 532, 538 (D.Md. 2012) (alteration in the original) (quoting Flanagan v. Dep't of Human Res., 989 A.2d 1139, 1143 (Md. 2010)). Nevertheless, Oliveira filed a responsive pleading to expeditiously move towards a resolution in this matter.[5] Accordingly, Oliveira's Motion to Dismiss, or in the Alternative, for Summary Judgment is timely and Marinkovic's Motion to Strike Oliveira's Motion to Dismiss will be denied.

On April 6, 2015, Marinkovic filed a Motion to Amend Complaint. (ECF No. 33). Under Federal Rule of Civil Procedure 15(a), "[t]he court should freely give leave [to amend a complaint] when justice so requires." Fed.R.Civ.P. 15(a)(2). It is within the Court's discretion to deny leave to amend, however, where the proposed amendment would be futile. Elrod v. Busch Entm't Corp., 479 F.Appx. 550, 551 (4th Cir. 2012). An amendment is futile where the complaint, as amended, cannot withstand a motion to dismiss. Id . (citing Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011)).

Here, on November 14, 2014, the Court denied Marinkovic's Motion to Stay (ECF No. 5), in which he voluntarily notified the Court that he had not yet exhausted the administrative process concerning his claims under Title VII. (See ECF No. 9). Upon finding that Marinkovic's Title VII claims were outside the jurisdiction of the Court, Counts I and III were struck from the Amended Complaint (ECF No. 6) without prejudice to Marinkovic's ability to refile his charge after a Right to Sue Letter issued. On March 12, 2015, Marinkovic filed a timely Notice of Right to Sue. (ECF No. 25). Thereafter, Marinkovic filed his Motion to Amend Complaint reasserting his Title VII claims, adding a cause of action based on defamation (Count X), and adding MedStar Health as a Defendant in this matter. (See Proposed Second Am. Compl., ECF No. 33-1). The Motion to Amend Complaint will be granted in part and denied in part.

The Motion to Amend will be granted to the extent Marinkovic attempts to reassert his Title VII claims (Counts I and III), adds MedStar Health as a Defendant, [6]and adds supporting factual allegations with respect to Counts I through IX. The proposed Second Amended Complaint will be denied to the extent it purports to ...


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