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Reese v. H&S Bakery, Inc.

United States District Court, D. Maryland

August 22, 2018

STEPHEN REESE, Plaintiff,
v.
H&S BAKERY, INC., et al., Defendants.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.)

         Pending 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.

         BACKGROUND

         Mr. Reese is an individual resident of New Jersey. (First Amended Complaint, ECF No. 7 at ¶ 5.)[1] 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.)

         On June 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 ¶ 27.)

         On July 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.)

         On 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. (Id.)[2]

         On 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.)

         On 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.

         STANDARDS OF REVIEW

         I. Motion to Dismiss under Rule 12(b)(6)

         To 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. 1993)).

         The 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.

         A court 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).

         A 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).

         II. Amendments under Rule 15

         Under 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).

         Rule 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 back if:

(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. 15(c)(1)(C).[3]

         Regarding 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)).

         DISCUSSION

         III. Motions to Dismiss

         In the 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.[4]

         A. Mootness

         Plaintiff 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 ยง 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 ...


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