United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Stephen Reese (“Mr. Reese” or
“Plaintiff”), initially filed the instant lawsuit
against Defendant H&S Bakery, Inc.
(“H&S”). Count I of his original Complaint
(ECF No. 1) alleges retaliation under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000 et
seq. (“Title VII”), and Count II of his
Complaint alleges retaliation under the Civil Rights Act of
1866, 42 U.S.C. § 1981 (“§ 1981”).
Plaintiff subsequently filed a First Amended Complaint to add
Automatic Rolls of New Jersey, Inc. (“ARNJ”) and
Northeast Foods, Inc. (“NEF”) as co-defendants
allegedly liable under the same two counts. (ECF No. 7.)
now are H&S's original Motion to Dismiss, or in the
alternative, Motion for Summary Judgment (ECF No. 4),
Defendants' joint Motion to Dismiss the First Amended
Complaint (ECF No. 12), and Plaintiff's Motion for Leave
to File Second Amended Complaint (ECF No. 19). The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons set forth below, H&S's initial Motion
to Dismiss, or in the alternative, Motion for Summary
Judgment (ECF No. 4) is MOOT, and the Defendants' joint
Motion to Dismiss (ECF No. 12), in which H&S challenges
both counts and in which ARNJ and NEF only challenge Count I,
is GRANTED. As a result, H&S is DISMISSED as a party to
this case, and the only claim to proceed against ARNJ and NEF
will be Plaintiff's retaliation claim under § 1981
(Count II of the First Amended Complaint). Finally,
Plaintiff's Motion for Leave to File Second Amended
Complaint (ECF No. 19) is DENIED.
Reese is an individual resident of New Jersey. (First Amended
Complaint, ECF No. 7 at ¶ 5.) The three Defendants
“maintain a principal place of business and regularly
carr[y] out business in Baltimore City, Maryland.”
(Id. at ¶¶6-8.) According to the
Plaintiff, NEF and ARNJ merged with each other and other
corporations in June 6, 1993. (Id. at ¶ 9.)
Plaintiff alleges that “[o]n or around October 3, 2003,
Plaintiff began working for Defendants as a Driver.”
(Id. at ¶ 20.)
15, 2017, Plaintiff filed a Charge of Discrimination with the
EEOC alleging race discrimination. (Id. at ¶
26; ECF No. 20-2.) Plaintiff alleges that on June 25, 2017,
the Defendants terminated his employment “in response
to and retaliation for Plaintiff having filed a Charge of
Discrimination with the EEOC.” (Id. at ¶
13, 2017, Mr. Reese filed a second Charge of Discrimination
against ARNJ with the EEOC alleging that the ARNJ had
retaliated against him for filing the prior Charge of
Discrimination with the EEOC. (ECF No. 7 at ¶ 30; ECF
No. 12-3.) On July 25, 2017, the EEOC denied the
Plaintiff's complaint and issued him a Notice of Right to
Sue associated with his retaliation Charge of July 13, 2017.
(ECF No. 7 at ¶ 31; ECF No. 12-4.)
October 23, 2017, Plaintiff filed his original Complaint (ECF
No. 1) in the instant case against only H&S, alleging
that H&S retaliated against him in violation of Title VII
(Count I) and 42 U.S.C. § 1981 (Count II). The Complaint
made no mention of Automatic Rolls of New Jersey
(“ARNJ”) or Northeast Foods (“NEF”).
On November 20, 2017, H&S filed a motion to dismiss for
failure to state a claim under Fed.R.Civ.P. 12(b)(6), or in
the alternative, a motion for summary judgment under
Fed.R.Civ.P. 56. (ECF No. 4). In this motion, H&S argued
that Plaintiff named the incorrect employer in his Complaint.
December 4, 2017, Plaintiff filed the First Amended Complaint
(ECF No. 7) adding ARNJ and NEF as co-defendants in the
instant case. Mr. Reese now alleges that all three Defendants
are the “same entity” and that “on or about
October 3, 2003, Plaintiff began working for Defendants as a
driver.” (Id. at ¶¶ 11, 20.) Mr.
Reese claims that all three Defendants retaliated against him
in violation of Title VII (Count I) and 42 U.S.C. § 1981
(Count II). (Id. at 5-7.) On December 15, 2017,
Defendants jointly filed a Motion to Dismiss Plaintiff's
First Amended Complaint (ECF No. 12), which is tailored to
each Defendant's circumstances. This motion has been
fully briefed. (ECF Nos. 20, 24.)
January 19, 2018, Plaintiff filed a Motion for Leave to File
Second Amended Complaint. (ECF No. 19.) The Defendants have
opposed this motion (ECF No. 21), but there has been no reply
by the Plaintiff.
Motion to Dismiss under Rule 12(b)(6)
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In considering a motion to dismiss
under Rule 12(b)(6), the court must accept all well-pled
allegations in a complaint as true, Albright v.
Oliver, 510 U.S. 266, 268 (1994), and must construe all
factual allegations in the light most favorable to the
plaintiff. See Harrison v. Westinghouse Savannah River
Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
sufficiency of a complaint is assessed by reference to the
pleading requirements of Rule 8(a)(2), which provides that a
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Nevertheless,
“Rule 8(a)(2) still requires a ‘showing,'
rather than a blanket assertion, of entitlement to
relief.” Twombly, 550 U.S. at 555 n.3.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). A complaint therefore cannot rely upon
“naked assertions devoid of further factual
enhancement, ” Iqbal, 556 U.S. at 678, and
courts are “not bound to accept as true a legal
conclusion couched as a factual allegation, ”
id. (quoting Twombly, 550 U.S. at 555).
“Where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Furthermore, “[w]here a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
‘entitlement to relief.'” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 557).
Determining whether a plaintiff has stated a plausible claim
is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
may consider documents that are “explicitly
incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .”
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
(4th Cir. 2016). A court may also “consider a document
submitted by the movant that was not attached to or expressly
incorporated in a complaint, so long as the document was
integral to the complaint and there is no dispute about the
document's authenticity.” Id. (citations
omitted). To be “integral, ” a document must be
one “that by its ‘very existence, and not the
mere information it contains, gives rise to the legal rights
asserted.'” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis in original).
motion to dismiss under Rule 12(b)(6) “generally cannot
reach the merits of an affirmative defense, such as the
defense that the plaintiff's claim is time-barred,
” unless “facts sufficient to rule on an
affirmative defense are alleged in the complaint.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007); accord Pressley v. Tupperware Long Term
Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009).
Amendments under Rule 15
Rule 15(a), a party may amend a pleading once as a matter of
course within “21 days after service of a responsive
pleading, ” if such a response is required.
Fed.R.Civ.P. 15(a)(1). After this initial window has passed,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). While leave to file
an amended complaint should be freely given when justice
requires, it may be denied where the amendment would be
futile. Equal Rights Ctr. v. Niles Bolton
Associates, 602 F.3d 597, 603 (4th Cir. 2010). An
amendment is futile when it is insufficient on its face.
Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th
Cir. 1986). A district court properly denies leave to amend a
pleading when a proposed amendment fails to “correct
the fundamental defect in the complaint.” New
Beckley Mining Corp. v. Int'l Union, United Mine
Workers, 18 F.3d 1161, 1164 (4th Cir. 1994).
15(c) governs whether an amended pleading “relates back
to the date of the original pleading.” Fed.R.Civ.P.
15(c)(1). When adding a new party, the amendment only relates
(1) “the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set
out-or attempted to be set out-in the original pleading,
” Fed.R.Civ.P. 15(c)(1)(B)-(C);
(2) the new party “received such notice of the action
that it will not be prejudiced in defending on the merits,
” Fed.R.Civ.P. 15(c)(1)(C)(i);
(3) the new party “knew or should have known that the
action would have been brought against it, but for a mistake
concerning the proper party's identity, ”
Fed.R.Civ.P. 15(c)(1)(C)(ii); and
(4) requirements three and four are satisfied “within
the period provided by Rule 4(m), ” Fed.R.Civ.P.
the second requirement, actual notice to a closely related
corporation that shares attorneys with the new party may be
sufficient, Goodman v. Praxair, Inc., 494 F.3d 458,
474-75 (4th Cir. 2007), and a court should inquire into
prejudice even where notice is established, see e.g.,
Robinson v. Clipse, 602 F.3d 605, 609 (4th Cir. 2010).
As to the third requirement, the United States Court of
Appeals for the Fourth Circuit has held that Rule 15(c) is
not satisfied when “the failure to name the prospective
defendant in the original complaint was the result of a fully
informed decision.” Tatum v. RJR Pension Inv.
Comm., 761 F.3d 346, 372 (4th Cir. 2014) (quoting
Krupski v. Costa Crociere S. p. A., 560 U.S. 538,
552, 130 S.Ct. 2485 (2010)). In other words, “a
deliberate choice to sue one party instead of another while
fully understanding the factual and legal differences between
the two parties” is not a “mistake”
enabling relation back under Rule 15(c). Tatum, 761
F.3d at 372 (citing Krupski, 560 U.S. at 549).
“[W]hen relation back is required to satisfy the
statute of limitations, the burden is on the plaintiff to
prove that Rule 15(c) is satisfied.” Covey v.
Assessor of Ohio Cty., 666 Fed.Appx. 245, 248 (4th Cir.
2016) (citing W. Contracting Corp. v. Bechtel Corp.,
885 F.2d 1196, 1200 (4th Cir. 1989)).
Motions to Dismiss
initial a Motion to Dismiss, or in the alternative, Motion
for Summary Judgment (ECF No. 4), H&S argues under Rule
12(b)(6) and Rule 56 that Plaintiff fails to establish that
H&S was Mr. Reese's employer as required under Title
VII and § 1981. After Plaintiff filed his First Amended
Complaint (ECF No. 7), which adds Automatic Rolls of New
Jersey (“ARNJ”) and Northeast Foods, Inc.
(“NEF”) as Defendants, all three Defendants filed
a joint Motion to Dismiss (ECF No. 12) in which H&S
argues that the First Amended Complaint again fails to state
a claim that H&S was his “employer” and,
alternatively, that Plaintiff failed to exhaust his
administrative remedies against H&S as required under
Title VII (Count I). ARNJ and NEF argue in the motion that
the Title VII claim (Count I) against these entities is
barred by the statute of limitations.
argues that H&S Bakery's initial Motion to Dismiss
(ECF No. 4) is moot because Plaintiff has filed an amended
complaint. (P.'s Resp. Mot. Dismiss, ECF No. 10-1 at
3-4.) H&S contends that its initial motion is not moot
because an amended complaint does not automatically
render moot a prior motion to dismiss, especially where the
same defects remain. (ECF No. 12-1 at 8 (citing Taylor v.
Delmarva Power & Light Co., Case 1:10-cv-01796-RDB,
at *4 (D. Md. July 19, 2011); Contreras v. Thor Norfolk
Hotel, L.L.C., 292 F.Supp.2d 798, 800 n.1 (E.D. Va.
2003); 6 Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure § 1476 (3d ed. 2010)).)
While the filing of Plaintiff's First Amended Complaint
did not automatically render moot the initial Motion to
Dismiss, H&S joined ARNJ and NEF in submitting a
subsequent Motion to Dismiss Plaintiff's First Amended
Complaint (ECF No. 12) that asserts the same argument and
effectively incorporates its prior motion by ...