Carter v. Wagon Wheel Restaurant, LLC et al

Filing 27

MEMORANDUM OPINION AND ORDER GRANTING 24 MOTION to Dismiss. Defendants Wagon Wheel Restaurant and Kings Limousine Service are DISMISSED. Within 7 calendar days the plaintiff may amend to name the only real defendant as "James King do ing business as both Wagon Wheel Restaurant and King's Limousine Service." King's Limousine Service (a sole proprietorship) and Wagon Wheel Restaurant (a sole proprietorship) terminated. Signed by Judge Virginia Emerson Hopkins on 8/8/2013. (JLC)

Carter v. King

Doc. 27

FILED
2013 Aug-08 PM 05:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
SHIRLEY J. CARTER,
Plaintiff,
v.
JAMES KING,
Defendant.

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) Case No.: 1:12-CV-2288-VEH
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MEMORANDUM OPINION AND ORDER
On June 28, 2012, the plaintiff, Shirley J. Carter, filed this action against
Wagon Wheel Restaurant, LLC, and James King. (Doc. 1). The original complaint
alleged counts for employment discrimination in violation of Title VII of the Civil
rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count One), assault (Count Two),
battery (Count Three), invasion of privacy (Count Four), outrage (Count Five), and
breach of contract (Count Six). (Doc. 1 at 9-15). On April 2, 2013, the court entered
the following order:
THIS CAUSE is before the court on the Report of the Parties’ Planning
Meeting (Doc. 15). In a footnote, the parties agree that Defendant
Wagon Wheel Restaurant, LLC has nothing to do with this case. (Doc.
15 at 1 n.1.) Therefore, the court will sua sponte dismiss Wagon Wheel
Restaurant, LLC without prejudice. If, prior to the deadline to amend her

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Complaint, Plaintiff desires to name additional defendants, she may seek
leave to amend her Complaint consistent with the Federal Rules of Civil
Procedures and the orders of this court.
(Doc. 17 at 1). On May 13, 2013, the plaintiff moved
to add Wagon Wheel Restaurant as a Defendant to her claim that arises
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e, et seq (“Title VII”), and (ii) to add King’s Limousine Service
as a Defendant to her state law breach of contract claim.
(Doc. 21 at 1). The plaintiff argued that both “Wagon Wheel Restaurant” and
“King’s Limousine Service” are owned and operated by defendant King. (Doc. 21
at 1). On June 4, 2012, the court noted that the defendant did not file an objection to
the motion, and granted it. (Doc. 22 at 1). The plaintiff filed the amended complaint
on June 7, 2013. (Doc. 23).
This case comes before the court on the defendants’ motion to dismiss. (Doc.
24). For the reasons stated herein, the motion will be GRANTED, with leave to
amend.
I.

STANDARD
“[A] court should only grant a motion to dismiss [under Rule 12(b)(6)] where

the defendant demonstrates that the plaintiff cannot prove any set of facts in support
of his claim which would entitle him to relief.” Am. United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1057 (11th Cir. 2007). “Moreover, when ruling on a motion to

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dismiss, a court must view the complaint in the light most favorable to the plaintiff
and accept all of the plaintiff's well-pleaded facts [and reasonable inferences drawn
from those facts] as true.” Id. (emphasis added). A court looks to the facts alleged
in the plaintiff’s complaint, and not its merely conclusory statements, when ruling on
a motion to dismiss. Thus, to survive a motion to dismiss for failure to state a claim,
“a plaintiff's obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 1964–65, 167 L. Ed. 2d 929 (2007) (quotations omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Id. at 1965.
Mere conclusory statements in support of a threadbare recital of the elements of a
cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009).
II.

ANALYSIS
The defendants make two arguments in their motion to dismiss. First, they

move to dismiss Wagon Wheel Restaurant because “[p]laintiff continues to allege that
she was employed by the ‘Wagon Wheel Restaurant, LLC.[’] (“Wagon Wheel”), at
all times material [to her complaint].” (Doc. 24 at 2) (citing doc. 23 at ¶¶ 5, 9, 12, and
21). The plaintiff states that this was merely a “clerical error” and that Wagon Wheel
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Restaurant should not be dismissed. The court agrees with the plaintiff. It is clear
from the plaintiff’s motion to amend, the caption of the complaint, and the first
paragraph of the complaint, that the plaintiff meant “Wagon Wheel Restaurant” in
paragraph 5, and not “Wagon Wheel Restaurant, LLC.”1
The defendants’ second argument is that, because it is clear that Wagon Wheel
Restaurant and King’s Limousine Service are sole proprietorships, it is only
appropriate to sue King, since “neither defendant is a legal entity that can be sued,”
and the plaintiff “simply sued James King twice.”2 (Doc. 24 at 3). They state that
King should not have to appear and defend himself more than once in this suit, calling
it “a wasteful duplication of efforts.” (Doc. 26 at 2).
Alabama law determines whether these two defendants have the capacity to be
sued. See Fed. R. Civ. P. 17(b)(3); see also, Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992) (“[C]apacity to sue or be sued shall be determined by the law of the
state in which the district court is held.”) (citing Fed. R. Civ. P. 17(b)). “Alabama law
makes no distinction between an individual and a sole proprietorship operated by the
individual. They are considered the same for legal purposes.” Carolina Cas. Ins. Co.
v. Williams, 945 So. 2d 1030, 1035 (Ala. 2006) (citing Clardy v. Sanders, 551 So.2d
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Further, the only count of the Amended Complaint which names this defendant is Count
One which states that it is against “Wagon Wheel Restaurant.” (Doc. 23 at 9-10).
2

The defendants mean “three times.”
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1057, 1059-60 (Ala.1989) (recognizing that an individual who operates a sole
proprietorship is not a separate legal entity from the sole proprietorship)).
The parties have not cited, and this court has not found, Alabama authority
stating whether the plaintiff can sue the defendants separately when they are all really
the same entity. The plaintiffs cite Hughes v. Cox, 601 So.2d 465 (Ala.1992), where
the Alabama Supreme Court held that, if an individual receives personal service of
the complaint, a judgment is valid as against that individual, even where it is only
entered against a sole proprietorship owned by that individual. Hughes, 601 So. 2d
at 471. The plaintiff also cites Moorer v. Hartz Seed Co., 120 F. Supp. 2d 1283
(M.D. Ala. 2000), where the federal district court, examining Hughes determined that
a sole proprietorship had the capacity to sue under Alabama law, even when the
individual who owned the company was not named as a plaintiff. Moorer, 120 F.
Supp. 2d at 1288.
The instant case is unlike Hughes and Moorer as here the individual and the
companies are named. Based upon the cases cited, the defendants are correct that the
same legal entity, Mr. King, has been sued three times. However, the plaintiff states
that she “desires to maintain the connection between her

employment with

[d]efendant King’s businesses as they pertain to her claims while comporting with
Alabama law,” and that
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Hughes and Moorer suggest that the clearest way to name a defendant
that is a sole proprietorship is to name the sole proprietor as “doing
business as” its sole proprietorship. In Hughes, after originally naming
only the sole proprietorship as a defendant, plaintiffs amended their
complaint and renamed the defendant as “Gearlene Hughes, d/b/a
Hughes Realty or Hughes Realty of Clanton.” In Moorer, the Middle
District noted that a difference between the facts in Moorer and those in
Hughes was that the party named itself solely by her trade name,
“MSC,” instead of “Frances Moorer d/b/a MSC.”
(Doc. 25 at 5-6). She then states
Like Hughes and Moorer, the sole Defendant in Plaintiff’s Title VII
sexual harassment claim (Count One) should be referred to as “James
King d/b/a Wagon Wheel Restaurant” and the sole Defendant in
Plaintiff’s breach of contract claim (Count Six) should be referred to as
“James King d/b/a King’s Limousine Service.”
(Doc. 25 at 6).
Since these three defendants are the same legal entity, they should be combined
as one defendant. The motion to dismiss is GRANTED. Defendants Wagon Wheel
Restaurant and King’s Limousine Service are DISMISSED. Within 7 calendar days
the plaintiff may amend to name the only real defendant as “James King doing
business as both Wagon Wheel Restaurant and King’s Limousine Service.”
DONE and ORDERED this 8th day of August, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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