United States District Court, D. Maryland
Xinis, United States District Judge.
before the Court is Defendant Salisbury Senior Housing I
Opco, LLC (“Salisbury”)'s motion to dismiss,
or, in the alternative, for summary judgment. ECF No. 26. The
issues are fully briefed, and the Court now rules pursuant to
Local Rule 105.6 because no hearing is necessary. For the
reasons set forth below, the Court grants Salisbury's
motion to dismiss without prejudice.
Robin Dixon (“Dixon”) worked at Lakeside Assisted
Living (“Lakeside”) as an LPN Shift Supervisor
from July 2009 until December 1, 2014, when she was
discharged for unexcused absences from work. ECF No. 1
¶¶ 10, 15. Several months before her termination,
Dixon began to suffer from excessive vaginal bleeding and
abdominal pain. Id. ¶ 12. Dixon was diagnosed
with uterine fibroids, menorrhagia, and, at least for a time,
cancer. Id. ¶ 12, 13. The cancer diagnosis
proved to be a mistake. Id. ¶ 13. Nonetheless,
Dixon's treating physician recommended that she not work
while pursuing medical treatment. Id. ¶ 13.
Dixon requested to not work certain shifts so as to
accommodate such treatment. Id. Her immediate
supervisor denied these requests. Id. Dixon
thereafter met with her human resources supervisor to seek
reasonable accommodation for her treatment needs.
Id. ¶ 14. In response, Dixon's supervisors
reduced the number of shifts that she was expected to work.
morning of November 29, 2014, Dixon notified her supervisor
that she could not work her evening shift because she woke up
in a pool of blood and had a high fever. Id. ¶
15. Two days later, on December 1, 2014, Dixon was
terminated. Id. ¶ 16.
November 19, 2016, Dixon received a notice of right to sue
from the Equal Employment Opportunity Commission (EEOC).
Id. ¶ 9. On February 14, 2017, Dixon filed this
suit, contending that her termination violated the Americans
with Disabilities Act (ADA). Id. at 1-2; 42 U.S.C.
§ 12101. On June 14, 2018, Salisbury moved to dismiss
the Complaint. ECF No. 26. Dixon sought a continuance of her
response to the motion until October 5, 2018, which this
Court granted. ECF No. 29. As of today, however, Dixon has
not filed a response. Given that over a month has passed
since Dixon's requested filing date, the Court will
decide the motion without the benefit of Dixon's
STANDARD OF REVIEW
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)
(citation and internal quotation marks omitted). A complaint
need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “Rule 8(a)(2) still requires a
‘showing,' rather than a blanket assertion, of
entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted) (quoting Twombly,
550 U.S. at 555).
ruling on a motion to dismiss, a plaintiff's well-pleaded
allegations are accepted as true and the complaint is viewed
in the light most favorable to the plaintiff.
Twombly, 550 U.S. at 555. “However, conclusory
statements or a ‘formulaic recitation of the elements
of a cause of action will not [suffice].'” EEOC
v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588
(D. Md. 2014) (quoting Twombly, 550 U.S. at 555).
“Factual allegations must be enough to raise a right to
relief above a speculative level.” Twombly,
550 U.S. at 555. “‘[N]aked assertions of
wrongdoing necessitate some ‘factual enhancement'
within the complaint to cross ‘the line between
possibility and plausibility of entitlement to
relief.'” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S.
primarily contends that dismissal is warranted because it was
not the corporate entity that owned or controlled the
assisted living facility at the time of Dixon's
employment. ECF No. 26 at 1. Dixon has pleaded that Salisbury
is a “successor in interest” to the former
corporate entity that controlled Lakeside Assisted Living
during Dixon's employment. ECF No. 1 ¶ 7. Indeed,
Dixon specifically avers that Salisbury was formed as a
corporation, which acquired Lakeside in 2015, after
Dixon's termination on December 1, 2014. Consequently,
Salisbury can only be held liable if it is a successor in
interest to the previous owner of the facility. EEOC v.
Phase 2 Invs., Inc., 310 F.Supp.3d 550, 559 (D. Md.
United States Court of Appeals for the Fourth Circuit has not
expressly established liability for successor entities in the
ADA context. Phase 2 Invs., 310 F.Supp.3d at 562.
However, several district courts have allowed suit to proceed
on the successor liability theory. See, e.g.,
Phase 2 Invs., 310 F.Supp.3d at 562; Lipscomb v.
Techs. Servs. and Info., Inc., No. DKC 09-3344, 2011 WL
691605, at *7 (D. Md. Feb. 18, 2011); Weintraub v. Bd. of
Cty. Comm'rs, No. DKC 2008-2669, 2009 WL 10685453,
at *2 (D. Md. May 26, 2009).
consider several factors when determining whether the
successor entity may be held liable for the prior
entity's violations, to include whether: (1) the
successor entity was on notice of the charge; (2) the
predecessor entity can provide relief; (3) there has been a
substantial continuity of business operations; (4) the
successor entity uses the same physical plant; (5) the
successor entity uses the same or substantially the same work
force; (6) the successor entity uses the same or
substantially the same supervisory personnel; (7) the same
jobs exist under substantially the same working conditions;
(8) the same machinery, equipment, and methods of production
are employed; and (9) the same service is provided.
Lipscomb, 2011 WL 691605, at *8 (quoting EEOC v.
MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094
(6th Cir.1974)). The factors “essentially look to
whether a successor had notice, whether a predecessor had the
ability to provide relief, and the continuity of the
business.” Lipscomb, 2011 WL 691605, at *8.
has pleaded no facts in the Complaint sufficient for this
Court to determine whether successor liability subjects
Salisbury to suit. Apart from simply stating, in conclusory
fashion, that Salisbury is the successor entity, see
ECF No. 1 ¶ 7, no factual allegations support that
conclusion. See Phase 2 Invs., 310 F.Supp.3d at 557
(analyzing the relevant business arrangement based on
purchase of assets, contractually negotiated liabilities, and
indemnity clauses). Absent ...