United States District Court, D. Maryland
LENIN LORA, et al.
LEDO PIZZA SYSTEM, INC.
DEBORAH K. CHASANOW United States District Judge
pending and ready for resolution in this employment case are:
(1) a motion to dismiss filed by Defendant Ledo Pizza
Systems, Inc. (ECF No. 5); (2) a motion to dismiss filed by
Defendants PV Shah, Trupti Prakash Shah, and Annapurna, Inc.
(collectively, the “Owings Mills Defendants”)
(ECF No. 7); and (3) a motion for leave to amend filed by
Plaintiffs Lenin Lora and Jazmyn Miller
(“Plaintiffs”) (ECF No. 21). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion for leave to amend will be granted, and the motions to
dismiss will be granted in part and denied in part.
Ledo Pizza Systems, Inc. (“Ledo”) is a
corporation that franchises Ledo's Pizza restaurants.
(ECF No. 21-2 ¶ 12). Defendants PV Shah and Trupti
Prakash Shah (“the Shahs”) own and operate
Annapurna Incorporated (“Annapurna”).
(Id. ¶ 16). Annapurna operates a Ledo's
Pizza franchise in Owings Mills, Maryland (the “Owings
Mills Store”). (Id. ¶ 13).
2008, Mr. Lora began working at a Ledo's Pizza restaurant
in Colesville, Maryland. (Id. ¶ 18). After Mr.
Lora worked at the Colesville location for years and was
promoted to the role of the general manager, he eventually
accepted a job with another employer in early 2016.
(Id. ¶¶ 18-19). Shortly thereafter, at the
recommendation of Ledo President James Beall, Annapurna hired
Mr. Lora as the general manager of the Owings Mills Store on
March 14, 2016. (Id. ¶¶ 21-22). Later that
month, Mr. Lora met with the Shahs and Damon Richards, a
corporate Ledo employee, to ask if he could hire Ms. Miller
as a bartender at the Owings Mills Store. (Id.
¶ 26). Mr. Lora and Ms. Miller were in a romantic
relationship, which he disclosed to Defendants before hiring
her. (Id. ¶¶ 26-28).
though Mr. Richards was a Ledo employee, he worked
occasionally at the Owings Mills Store. (Id. ¶
24). Mr. Richards directed Mr. Lora as to which items to
stock in the bar, prepared inventory lists, and provided
training, consultation, and operational support.
(Id.). Mr. Richards also required that Mr. Lora
provide him with daily and weekly reports on the status of
the Owings Mills Store for Ledo. (Id.). Plaintiffs
allege that Mr. Richards also hired at least one server at
the Owings Mills Store, and that he set the work schedules
for Mr. Lora and his assistant. (Id. ¶ 24).
March 2016, Mr. Lora hired 64-year-old Jacki Gray as a
bartender for the Owings Mills Store. (Id. ¶
29). Mr. Richards told Mr. Lora that Ms. Gray was “too
old” and “grandma like, ” suggested that
she would not be able to make and serve drinks at a fast
pace, and ordered Mr. Lora to fire her. (Id.
¶¶ 31-32). When Mr. Lora told Mr. Richards that he
could not fire her because of her age, Mr. Richards told Mr.
Lora that he would “regret it” if he did not fire
her. (Id. ¶ 34).
the same time, Mr. Lora began processing payroll for the
Owings Mills Store and noticed several issues. First, he
discovered that some employees were being paid less than
minimum wage. (Id. ¶ 35). Mr. Lora informed
Trupti Prakash Shah that the wages were illegally low; she
told him that she would correct the wages in Annapurna's
payroll system but never made the correction. (Id.
¶¶ 36-40, 49). Second, Ms. Shah reprimanded Mr.
Lora for properly paying employees increased amounts for
overtime work. (Id. ¶¶ 45-46). Third, Mr.
Lora discovered that one employee at the Owings Mills Store
was an undocumented worker who was being paid outside of
Annapurna's normal payroll. (Id. ¶¶
41-43). When Mr. Lora raised concerns about this practice
with Ms. Shah and Mr. Richards, Mr. Richards told him to
“do the best you can, ” and Ms. Shah continued to
pay the undocumented worker. (Id. ¶ 44).
beginning of June, the Shahs eliminated Mr. Lora's
payroll responsibilities, began processing payroll
exclusively on their own, and resumed underpaying
Annapurna's employees. (Id. ¶¶ 48-49).
Because Mr. Lora had informed them of Annapurna's wage
violations, employees in the Owings Mills Store confronted
the Shahs after receiving their reduced paychecks on June 10.
(Id. ¶ 50). On June 16, Mr. Lora complained
once again about the undocumented worker, this time to PV
Shah. (Id. ¶ 51). On June 17, the day after
making this complaint, Mr. Shah and Mr. Richards told Mr.
Lora he was being fired because of the poor performance of
the Owings Mills Store. (Id. ¶¶ 52-53).
When Ms. Miller called two days later to ask for her shift
schedule for the week, Ms. Shah told Ms. Miller that
“Corporate” had told her not to put Mr. Lora
“or his girlfriend” on the schedule, effectively
terminating Ms. Miller's employment at the Owings Mills
Store. (Id. ¶¶ 55-56). Both Plaintiffs
were underpaid in their final paychecks. (Id.
¶¶ 57-59). After firing Plaintiffs, the Shahs and
Mr. Richards told third parties, including Mr. Beall, a food
safety inspector, and the other employees at the Owings Mills
Store, that Mr. Lora was a “bad manager, ” that
he “did not care about the store, ” and that he
had been stealing from the restaurant. (Id. ¶
each filed charges of discrimination with the United States
Equal Employment Opportunity Commission in September 2016.
(ECF No. 21-2 ¶¶ 5-8). On December 15, Plaintiffs
filed the instant suit. (ECF No. 1). In their original
complaint, they alleged that: Defendants fired each of them
in retaliation for Mr. Lora raising wage issues, in violation
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201, et seq. (Counts I and II);
Defendants fired each of them in retaliation for Mr. Lora
refusing to fire Ms. Gray because of her age, in violation of
the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, et seq.
(Counts III and IV); Defendants defamed Mr. Lora after he was
fired (Count V); Defendants fired Mr. Lora because he
complained about their unfair wage practices, in violation of
public policy and thus constituting an abusive discharge
(Count VI); and the Owings Mills Defendants intentionally
underpaid each of them on their last paychecks constituting
both a failure to pay wages and untimely payment of wages
under the Maryland Wage Payment and Collection Law, Md. Code
Ann., Labor & Empl. § 3-501 et seq.,
(Counts VII, VIII, IX, and X). (ECF No. 1 ¶¶
filed a motion to dismiss all of the claims against it on
January 12, 2017. (ECF No. 5). That same day, the Owings
Mills Defendants filed a partial motion to dismiss as to the
Shahs for Counts III and IV, and as to all three Owings Mills
Defendants for Counts V and VI. (ECF No. 7). On February 9,
Plaintiffs filed responses in opposition to each motion and a
motion to amend their complaint. (ECF Nos. 19-21). The Owings
Mills Defendants consented to Plaintiffs' motion to
amend, but Ledo did not. (ECF No. 21). On March 2, Ledo
responded in opposition the Plaintiffs' motion to amend
and also filed a reply to its motion to dismiss. (ECF Nos.
Plaintiffs' Motion to Amend A. Standard of
may amend its pleading once as a matter of course within
twenty-one days after serving it or within twenty-one days
after service of a motion under Fed.R.Civ.P. 12(b), whichever
is earlier. Fed.R.Civ.P. 15(a)(1). When the right to amend as
a matter of course expires, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Whether to grant leave to amend is a matter left to the
discretion of the district court, see Simmons v. United
Mortg. & Loan Inv., LLC, 634 F.3d 754, 769
(4th Cir. 2011), though courts should
“freely give leave when justice so requires, ”
Fed.R.Civ.P. 15(a)(2). Denial of leave to amend is
appropriate “only when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be
futile.” Edwards v. City of Goldsboro, 178
F.3d 231, 242 (4th Cir. 1999) (emphasis in
original) (quoting Johnson v. Oroweat Foods Co., 785
F.2d 503, 509 (4th Cir. 1986)).
Owings Mills Defendants have consented to Plaintiffs'
motion to amend. (ECF No. 21, at 1). Ledo filed an opposition
to the motion, arguing that Plaintiffs' proposed
amendments would be both futile and prejudicial. (ECF No. 24,
to amend may be denied as futile “if the proposed
amended complaint fails to satisfy the requirements of the
federal rules, ” including federal pleading standards.
Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462,
471 (4th Cir. 2011) (quoting Wilson v. Kellogg
Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir. 2008)); Oroweat Foods Co., 785
F.2d at 510 (“Leave to amend, however, should only be
denied on the ground of futility when the proposed amendment
is clearly insufficient or frivolous on its face.”
(citations omitted)). Denial of leave to amend on futility
grounds is appropriate if the court, taking as true the
allegations of the proposed amended pleading, would be
compelled to dismiss the action. See Kellogg Brown &
Root, 525 F.3d at 376 (affirming the district
court's denial of leave to amend because the
“proposed amended complaint does not properly state a
claim under Rule 12(b)(6)”). As explained below, the
factual allegations in the proposed amended pleading are
sufficient to survive a motion to dismiss on several counts.
Accordingly, Plaintiffs' amendment would not be futile.
an amendment would be prejudicial is a factual determination.
Courts look at the nature of the proposed amendment, the
purpose of the amendment, and the time when the amendment was
filed.” Equal Rights Ctr. v. Archstone Smith
Tr., 603 F.Supp.2d 814, 818 (D.Md. 2009) (citing
Laber v. Harvey, 438 F.3d 404, 427 (4th
Cir. 2006) (en banc); Oroweat Foods Co., 785 F.2d at
509). The United States Court of Appeals for the Fourth
Circuit has explained that:
A common example of a prejudicial amendment is one that
“raises a new legal theory that would require the
gathering and analysis of facts not already considered by the
[opposing party, and] is offered shortly before or during
trial.” Foman v. Davis, 371 U.S. 178, 182
(1962). An amendment is not prejudicial, by contrast, if it
merely adds an additional theory of recovery to the facts
already pled and is offered before any discovery has
Laber, 438 F.3d at 427 (alteration in original).
contends that “permitting the amendment would unduly
prejudice Ledo Pizza System by causing it to defend a
complaint that would become a moving target through
substantial changes to the causes of action and allegations
asserted.” (ECF No. 24, at 3). To be sure,
Plaintiffs' modifications are designed to cure defects
identified in the motions to dismiss and therefore have
created somewhat of a moving target, but such changes are
common to amended complaints. See Hess v. Gray, 85
F.R.D. 15, 20 (N.D.Ill. 1979) (“Generally, almost every
amendment to a complaint results in some prejudice to the
defendant, either in the form of additional counts or new
discovery resulting in delay. The test in each case is
whether undue prejudice will result.”). Here,
Plaintiffs provided their amended complaint with their
response in opposition to Defendants' motions to dismiss,
allowing Ledo to address these new allegations in its reply.
Indeed, Ledo has done so. Moreover, this case is in its early
stages. Ledo has not yet filed its answer, nor has any
discovery been scheduled. Accordingly, Ledo cannot show that
amendment would cause undue prejudice, and Plaintiffs'
motion to amend will be granted.
some of the defects raised in the original motion remain in
the new pleading, the court simply may consider the motion
[to dismiss] as being addressed to the amended
pleading.” 6 Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure §
1476 (2d ed. 1990), cited in Ford v. Chiaramonte,
No. DKC-10-0137, 2010 WL 2696699, at *3 n.2 (D.Md. July 6,
2010); see also Dolgaleva v. Va. Beach City Public.
Sch., 364 F.App'x 820, 825 (4th Cir.
2010) (accepting an appeal based on a motion to dismiss that
preceded an amended complaint where the district court
accepted the amended complaint determined that the Defendant
would not need to file a new motion to dismiss). As discussed
below, Plaintiffs' amended complaint does not cure all of
the defects ...