United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
September 21, 2018, the Court dismissed the initial Complaint
filed by Plaintiff Linda Gough, pro se,
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.
following reasons, Bankers Life's Motion to Dismiss is
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.
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.
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
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.
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.
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).
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
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.