United States District Court, D. Maryland
MEMORANDUM TO COUNSEL
before the Court is Defendant Mitra QSR KNE, LLC's
(“Mitra”) Motion to Dismiss or, in the
Alternative, for Summary Judgment. (ECF No. 18). The Motion
is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will grant the
August 2014, Plaintiff Kenneth House began his employment
with Mitra as General Manager of one of its Baltimore
Kentucky Fried Chicken locations. (Compl. ¶¶ 2, 5,
ECF No. 1). Mitra represented to House and its other
employees that it complies with the Americans with
Disabilities Act (“ADA”) and that it would
provide reasonable accommodations for employees who made
Mitra aware of their disabilities. (Id. ¶ 6).
In July 2015, House informed his supervisor, Richard Skelly,
that he suffered from a qualifying disability-alcoholism-and
that a twenty-eight day treatment program had accepted him.
(Id. ¶ 7). House requested that Skelly hold his
job while he was in treatment, and Skelly assured House that
he would “have a spot for [him]” upon House's
return. (Id. ¶ 8). While House was in
treatment, neither he nor his family received any paperwork
from Skelly or Mitra, and Skelly and Mitra did not initiate
the required process to determine whether they would grant
House's leave. (Id. ¶¶ 8-9, 13).
August 26, 2015, after returning from treatment, House asked
Skelly when he could resume work. (Id. ¶ 10).
Skelly first ignored House and then directed House to contact
the Regional Vice President of Operations, Homer Hunt.
(Id. ¶¶10-11). Hunt informed House that
his employment had been terminated on August 3, 2015, while
House was in treatment. (Id. ¶ 11). House
suffered severe emotional distress from his termination, and
in September 2015, he filed a discrimination charge with the
Equal Employment Opportunity Commission (“EEOC”).
(Id. ¶¶ 14-15). Later that month, the EEOC
issued a written determination that Mitra had discriminated
against House in violation of the ADA. (Id. ¶
November 14, 2016, the EEOC issued House a Right to Sue
letter. (Id. ¶ 17). House then died on February
11, 2017. (Bennett Decl. ¶ 5, ECF No. 18-3). On February
13, 2017, the ninetieth day after House received his Right to
Sue letter, House's counsel filed suit against Mitra in
House's name. (ECF No. 1).
one-count Complaint, House alleges discrimination and failure to
accommodate in violation of the ADA, 42 U.S.C. §§
12101 et seq. (2018). (Compl. ¶¶ 19-25).
House seeks an amount greater than $500, 000 in compensatory
and punitive damages, as well as attorneys' fees and
costs. (Id. at 6). On May 24, 2017, Mitra filed an
Answer. (ECF No. 6). The next day, House filed a Notice of
Death of Plaintiff under Federal Rule of Civil Procedure 25.
(ECF No. 9). On September 5, 2017, Mitra filed the instant
Motion to Dismiss or, in the Alternative, for Summary
Judgment. (ECF No. 18). On September 16, 2017, House filed an
Opposition, (ECF No. 23), to which Mitra filed a Reply on
October 2, 2017, (ECF No. 24).
styles its Motion as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) or, in the alternative, for
summary judgment under Rule 56. A motion styled in this
manner implicates the Court's discretion under Rule
12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery
Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011),
aff'd, 684 F.3d 462 (4th Cir. 2012). Pursuant to
Rule 12(d), when “matters outside the pleadings are
presented to and not excluded by the court, the [Rule
12(b)(6)] motion must be treated as one for summary judgment
under Rule 56.” The United States Court of Appeals for
the Fourth Circuit has articulated two requirements for
proper conversion of a Rule 12(b)(6) motion to a Rule 56
motion. First, that the “parties be given some
indication by the court that it is treating the 12(b)(6)
motion as a motion for summary judgment” and second,
“that the parties first ‘be afforded a reasonable
opportunity for discovery.'” Greater Balt. Ctr.
for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d
264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761
F.2d 175, 177 (4th Cir. 1985)).
the movant expressly captions its motion “in the
alternative” as one for summary judgment and submits
matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur. See Moret v.
Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). Rule 56(d)
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.”
“[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.” Nguyen
v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting
Paddington Partners v. Bouchard, 34 F.3d 1132, 1137
(2d Cir. 1994)).
House does not oppose the Court construing the Motion as one
for summary judgment, has not submitted a Rule 56(d)
affidavit expressing a need for discovery, and has attached
his own extrinsic evidence to his Opposition. Accordingly,
the Court will construe Mitra's Motion as one for summary
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Othentec Ltd. v. Phelan, 526 F.3d
135, 141 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985)).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no genuine [dispute] as to any material fact,
' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23
case, the parties do not dispute that House died before his
counsel filed suit against Mitra. Mitra contends that, as a
result, the suit is a “nullity” and must be
dismissed. (Def.'s Mot. Dismiss Summ. J. at 4, ECF No.
18). House concedes that his claims must be brought in the
name of the personal representative of his estate, rather
than his own name. He argues, however, that under Rule
17(a)(3), he is entitled to substitute the personal
representative of his estate in place of the plaintiff. The
Court agrees with Mitra.
suit in the name of a deceased party is an unusual
circumstance. Neither this Court, nor the United States Court
of Appeals for the Fourth Circuit, has considered whether a
suit brought in the name of a deceased party may proceed by
substituting a proper party under Rule 17(a)(3). Other
district courts, however, uniformly agree that “legal
existence” is a “prerequisite to having the
capacity to sue, ” making a suit brought in the name of
a deceased party a “mere nullity.” Sams v. GA
W. Gate, LLC, No. 415-282, 2016 WL 3339764, at *2 (S.D.
Ga. June 10, 2016) (quoting In re Engle Cases, No.
3:09-CV-10000-J-32, 2013 WL 8115442, at *2 (M.D. Fla. Jan.
22, 2013)); see also, e.g., In re Asbestos Prod.
Liab. Litig. (No. VI), 311 F.R.D. 152, 155 (E.D. Pa.
2015) (concluding that such suits are “nullities ab
initio due to the deceased Plaintiffs' lack of legal
existence”); Adelsberger v. United States, 58
Fed.Cl. 616, 618 (Fed. Cl. 2003) (“The ...