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Gough v. Bankers Life and Casualty Co.

United States District Court, D. Maryland

February 12, 2019

LINDA GOUGH, Plaintiff,



         On September 21, 2018, the Court dismissed the initial Complaint filed by Plaintiff Linda Gough, pro se, [1] against her former employer, Defendant Bankers Life and Casualty Company (“Bankers Life”). After reviewing the report of an independent counsel appointed by the Court to review her case, the Court granted Gough leave to file an Amended Complaint within thirty days, in which she could allege that Bankers Life had violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., by improperly classifying her as an independent contractor when in fact she allegedly performed the responsibilities of an employee-who would therefore be entitled to such benefits as minimum wage and unemployment insurance. Gough filed an Amended Complaint, ECF No. 39, on October 22, 2018, within the time limit specified by the Court, but still proceeding pro se. On October 26, 2018, Bankers Life filed a Motion to Dismiss. ECF No. 40.

         For the following reasons, Bankers Life's Motion to Dismiss is GRANTED.


         The Court's Memorandum Opinion of September 21, 2018, ECF No. 37, thoroughly recites the factual background and procedural history of the case. This Opinion will discuss the relevant facts alleged in Gough's Amended Complaint as well as the procedural developments that have occurred since she filed it on October 22, 2018.

         According to her Complaint and Amended Complaint, Gough worked for Bankers Life as a “1099 Insurance Agent” from February 2016 through July 2016. ECF No. 39 at 1-2. She spent two days per week “making phone calls to pursue sales leads” and three days per week “meeting with clients, preparing materials, and doing on-line course work.” Id. at 1. Prior to her employment, Bankers Life sponsored Gough's participation in an online class to prepare her for the examination required for insurance agents, but required her to pay for the class, for the exam, and for insurance licenses required by both Maryland and the District of Columbia. Id. at 9. Gough also claims that Bankers Life encouraged its agents to buy sales leads in order to increase their likelihood of successfully selling insurance policies, but says she lacked sufficient funds to purchase any. See Id. 9-10. As an additional job responsibility, Gough was required to mail information about Bankers Life's insurance products to “cold leads, ” although Bankers Life did not provide a mail room or postage for this purpose. See Id. at 10.

         Gough states that after she failed to meet her monthly sales quota, she met with her manager, Omar Torres, to discuss her career options. Id. at 2. Torres refused Gough's request for minimum wage protection. Shortly after that meeting, in July 2016, Gough left her position at Bankers Life. Id. Gough estimates that “46%” of the workers at Bankers Life left the company during her tenure. Id.

         In January 2017, after briefly working for State Farm and interviewing for a job at Geico, Gough applied unsuccessfully for unemployment benefits. Id. She was purportedly unable to obtain such benefits because she had been compensated solely by commission during her time at Bankers Life. Id. at 2-3.

         The Court dismissed Gough's Complaint without prejudice on September 21, 2018, giving her leave to file an Amended Complaint, which, as indicated, she did. In response to the Amended Complaint, ECF No. 39, Bankers Life filed its Motion to Dismiss, ECF No. 40, which Gough responded to, ECF No. 44, later supplementing it with additional documents, ECF No. 45. Bankers Life filed its Reply on November 30, 2018. ECF No. 46. After the Court granted her leave on January 30, 2019, Gough filed a Surreply. ECF No. 49-1.[2]


         Federal Rule of Civil Procedure 8(a) prescribes “liberal pleading standards” that require a plaintiff to submit only a “short and plain statement of the claim showing that [she] is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Fed.R.Civ.P. 8(a)(2)). The plaintiff's statement must contain facts sufficient to “state a claim to relief that is plausible on its face” in order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). The plausibility standard requires that the plaintiff plead facts sufficient to show by “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court will accept the plaintiff's factual allegations as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Legal conclusions couched as factual allegations or “unwarranted inferences, unreasonable conclusions, or arguments” do not satisfy the plausibility pleading standard. E. Shore Markets, Inc. v. J.D. Associates Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). The complaint must contain factual allegations sufficient to apprise a defendant of “what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted).

         Federal courts have an “obligation to liberally construe a pro se [c]omplaint” and may consider additional facts and information supporting the complaint that is provided in an opposition to a motion to dismiss. See Rush v. Am. Home Mortg., Inc., 2009 U.S. Dist LEXIS 112530, at *11-12 (D. Md. Dec. 3, 2009). However, this requirement “does not transform the court into an advocate, ” United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotations and citations omitted), and “[w]hile pro se complaints may ‘represent the work of an untutored hand requiring special judicial solicitude,' a district court is not required to recognize ‘obscure or extravagant claims defying the most concerted efforts to unravel them.'” Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986)). Although the facts alleged in a pro se plaintiff's complaint must ordinarily be taken as true, mere conclusory statements “are not entitled to the assumption of truth.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 679)) (internal quotation marks omitted).


         As a preliminary matter, the Court addresses Bankers Life's argument that Gough is precluded from introducing new facts in her Opposition to Bankers Life's Motion to Dismiss and relying on any attachments thereto that were not pled in her Amended Complaint. Normally, when reviewing a motion to dismiss, courts only consider “allegations in the complaint, matters of public record, and documents attached to the motion to dismiss that are integral to the complaint and authentic.” See, e.g., Verdiner v. Washington Metropolitan Area Transit Authority, No. DKC 15-2612, 2016 WL 2736185, at *1 n.3 (D. Md. May 11, 2016) (citing Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). In effect, allowing a plaintiff to introduce new allegations through an opposition to a motion to dismiss would permit circumvention of the proper method for pleading new facts and claims: amending the complaint. See, e.g., S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“It is well established that parties cannot amend their complaints through briefing or oral advocacy.”) (citations omitted); see also Palmer v. Urgo Hotels, L.P., No. 8:18-cv-0085-PX, ...

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