Burchfield v. Industrial Chemicals Inc
MEMORANDUM OPINION. Signed by Judge R David Proctor on 11/16/2012. (AVC)
2012 Nov-16 PM 04:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
INDUSTRIAL CHEMICALS, INC.,
Case No.: 2:11-CV-2816-RDP
This matter is before the court on (1) Defendant Industrial Chemicals, Inc.’s Motion to
Dismiss Second Amended Complaint (Doc. # 37); (2) Defendant Carlos Maravilla’s Motion to
Dismiss Plaintiffs’ Second Amended Complaint (Doc. # 49); and Defendant William L. Welch, Jr.’s
Motion to Dismiss Second Amended Complaint (Doc. # 54). The Motions have been fully briefed.
(Docs. # 38, 43, 50, 52, 53, 55, 58, and 59).
Plaintiff Burchfield began his employment with Defendant, Industrial Chemicals, Inc. (“IC”)
in 2006. (Doc. # 1 at 2).
Plaintiff Burchfield claims his problems with IC began when a Hispanic employee of IC
claimed that he was subjected to a barrage of racially discriminatory and derogatory statements by
a supervisory employee of IC. Another supervisory employee of IC, Jeffrey Williams, assisted that
Hispanic employee with preparing an EEOC charge against IC alleging racial discrimination in
employment. Later, IC terminated Williams’ employment. Williams filed his own EEOC charge
against IC and was reinstated. (Doc. # 32 at 5-6).
In approximately March 2011, Burchfield expressed his support for Williams and complained
about being required to sign a document stating that employees could be terminated for contacting
government officials. (Doc. # 1 at 3, 7-8). Burchfield’s employment was terminated on July 18,
2011, allegedly in retaliation for this protected conduct. (Doc. # 32 at 8).
In connection with the termination of his employment, Plaintiff Burchfield was promised
certain severance payments. (Doc. # 1 at 3). On July 25, 2011, Plaintiff Burchfield filed an EEOC
charge alleging that his termination was retaliatory. (Doc. # 1 at 7). On July 28, 2011, Plaintiff
Burchfield received his first severance payment. (Doc. # 1 at 3-4). Thereafter, Plaintiff Burchfield
claims that once IC received notice of his EEOC charge, his severance payments ceased. (Doc. #
1 at 4-5). Plaintiff Burchfield filed his Complaint in this action on August 10, 2011. (Doc. # 1).
Since the filing of this lawsuit, Plaintiff Burchfield’s severance has been paid in full. (Doc. # 15 at
On July 4, 2012, Plaintiff Burchfield filed a Second Amended Complaint. (Doc. # 32).
Plaintiff’s Second Amended Complaint added another plaintiff, Cory Jenkins, who is Plaintiff
After Burchfield’s termination, Jenkins alleges that he was threatened with physical violence
and that he was told it was because of Burchfield. (Doc. # 32 at 11). After he complained about the
threats of violence, Jenkins was terminated. Jenkins claims that the reason given for his termination,
reducing the number of managers, was a pretext. (Doc. # 32 AT 11). Jenkins asked to remain in a
position he had performed in the past, but his request was denied. Jenkins asserts that IC employed
an illegal alien in one such position at the time he was terminated. (Doc. # 32 at 12).
The Second Amended Complaint contains 21 counts:
Count I (¶¶ 71-74), Retaliatory Refusal to Pay Severance in Violation of Title VII
(Burchfield against Industrial Chemicals);
Count II (¶¶ 75-78), Retaliatory Refusal to Pay Severance in Violation of Section 1981
(Burchfield against Industrial Chemicals);
Count III (¶¶ 79-82), Retaliatory Discharge in Violation of Title VII (Burchfield against
Count IV (¶¶ 83-86), Retaliatory Discharge in Violation of Section 1981 (Burchfield against
Count V (¶¶ 87-93), Retaliatory Hostile Environment (as to Jenkins) in Violation of Title VII
(Burchfield against Industrial Chemicals);
Count VI (¶¶ 94-98), Retaliatory Hostile Environment (as to Jenkins) in Violation of Section
1981 (Burchfield against Industrial Chemicals and Welch);
Count VII (¶¶ 99-102), Retaliatory Discharge (of Jenkins) in Violation of Title VII
(Burchfield against Industrial Chemicals);
Count VIII (¶¶ 103-06), Retaliatory Discharge (of Jenkins) in Violation of Section 1981
(Burchfield against Industrial Chemicals and Welch);
Count IX (¶¶ 107-12), Retaliatory Hostile Environment (as to Jenkins) in Violation of Title
VII (Jenkins against Industrial Chemicals);
Count X (¶¶ 113-19), Retaliatory Hostile Environment in Violation of Section 1981 (Jenkins
against Industrial Chemicals);
Count XI (¶¶ 120-23), Retaliatory Discharge in Violation of Title VII (Jenkins against
Count XII (¶¶ 124-27), Retaliatory Discharge in Violation of Section 1981 (Jenkins against
Industrial Chemicals and Welch);
Count XIII (¶¶ 128-37), RICO based on 8 U.S.C. § 1324(a)(1)(A)(iii) (Burchfield and
Jenkins against Industrial Chemicals, Welch, and Maravilla);
Count XIV (¶¶ 138-47), RICO based on 8 U.S.C. § 1324(a)(1)(A)(iv) (Burchfield and
Jenkins against Industrial Chemicals and Welch);
Count XV (¶¶ 148-59), RICO based on 8 U.S.C. § 1324(a)(1)(A)(v)(I)-(II) (Burchfield and
Jenkins against Industrial Chemicals, Welch, and Maravilla);
Counts XVI, XVII, & XVIII (¶¶ 160-63), Felonious Torts based on RICO Violations
(Burchfield and Jenkins against Industrial Chemicals, Welch, and Maravilla); and
Counts XIX, XX, & XXI (¶¶ 164-67), Felonious Torts based on 8 U.S.C. § 1324 (Burchfield
and Jenkins against Industrial Chemicals, Welch, and Maravilla).
(Docs. # 32 and 38).
IC moves to dismiss Counts V through XXI of the Second Amended Complaint. (Docs. #
32 and 38). The individual defendants move to dismiss all of the claims stated against them.1 (Docs.
# 49 and 55).
Counts XIII through XXI, Plaintiffs’ RICO and Felonious Tort Claims, are Due
to be Dismissed
As a general rule, the Federal Rules of Civil Procedure require only that the complaint
provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a). However, the Supreme Court has made clear that to survive a motion to dismiss, a
complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The complaint must include enough facts
“to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Pleadings that
contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet
Rule 8 standards, nor do pleadings suffice that are based merely upon “labels or conclusions” or
Counts I through IV are asserted only against IC.
“naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S. at 555, 557. To be
plausible on its face, the claim must contain enough facts that “allow  the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
To survive Defendants’ motions, the allegations of a complaint must permit the court based
on its “judicial experience and common sense . . . to infer more than the mere possibility of
misconduct.” Id. The court has carefully considered Defendants’ Motions and Plaintiff’s Second
Amended Complaint and concludes that Counts XIII through XXI, constitute a classic example of
a shotgun pleading, which the Eleventh Circuit has “condemned repeatedly.” Muglata v. Samples,
256 F.3d 1284 (11th Cir. 2001).
“Shotgun pleading” refers to an unfocused, scattered approach which makes it difficult (often
impossible) for the court and the opposing parties to discern the nature of the claims being asserted.
See Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991) (describing “quintessential ‘shotgun’
pleadings” complete with “rambling recitation[s]” and “factual allegations that could not possibly
be material” that force the “district court [to] sift through the facts presented and decide for [itself]
which were material to the particular cause of action asserted”); Thompson v. RelationServe Media,
Inc., 610 F.3d 628, 650 n. 22 (11th Cir. 2010) (“The complaint was a typical ‘shotgun’ pleading, in
that each count incorporated by reference all preceding paragraphs and counts of the complaint
notwithstanding that many of the facts alleged were not material to the claim, or cause of action,
appearing in a count’s heading.”).
Counts XIII through XXI violate all of these principles. Each count incorporates all
allegations of the Second Amended Complaint and alleges that all of those allegations constitute a
violation of Plaintiffs’ rights. Moreover, these counts also clearly run afoul of Twombly and Iqbal
because they are replete with legal conclusions masquerading as facts and devoid of specific factual
allegations. Therefore, Counts XIII through XXI are due to be dismissed without prejudice for these
The RICO Claims Fail to State A Claim
As Defendants correctly note, many courts of appeal, as well as the Middle District of
Alabama, have refused to find a valid RICO claim where the alleged enterprise consists only of a
corporation and its employees. See, e.g. Danny Lynn Elec. & Plumbing, LLC v. Veolia ES Solid
Waste, 2011 WL 2893629 *2-3 (M.D. Ala. 2011); Khurana v. Innovative Health Care Sys., 130
F.3d 143, 155 (5th Cir. 1997), vacated on other grounds, Teel v. Khurana, 525 U.S. 979 (1998)
(“The distinctiveness requirement may not be avoided by alleging a RICO enterprise that consists
merely of a corporation defendant associated with its own employees or agents carrying on the
regular affairs of the defendants.”) (internal quotation marks and citation omitted) (quoted in
ISystems v. Spark Networks, Ltd., 2011 WL 2342523, *4 (5th Cir. 2011)); Bessette v. Avco Financial
Services, Inc., 230 F.3d 439, 449 (1st Cir. 2000) (“employees acting solely in the interest of their
employer, carrying on the regular affairs of the corporate enterprise, are not distinct from that
enterprise.”); Bachman v. Bear, Stearns & Co., Inc., 178 F.3d 930, 932 (7th Cir. 1999) (“A firm and
its employees, or a parent and its subsidiaries, are not an enterprise separate from the firm itself.”);
Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A ., 30 F.3d 339, 344 (2d Cir. 1994)
(distinguished and left intact by Kushner, 533 U.S. at 164) (“Nevertheless, by alleging a RICO
enterprise that consists merely of a corporate defendant associated with its own employees or agents
carrying on the regular affairs of the defendant, the distinctness requirement may not be
circumvented.”); Davis v. Mutual Life Ins. Co. of New York, 6 F .3d 367, 377 (6th Cir. 1993)
(“Under the ‘non-identity’ or ‘distinctness’ requirement, a corporation may not be liable under
section 1962(c) for participating in the affairs of an enterprise that consists only of its own
subdivisions, agents, or members. An organization cannot join with its own members to undertake
regular corporate activity and thereby become an enterprise distinct from itself.”). This court agrees
with the well-reasoned conclusions of these decisions. Therefore, Counts XIII through XV are due
to be dismissed with prejudice for this additional reason.
Moreover, it does not appear that Plaintiff Burchfield has standing to assert the RICO claims.
When a plaintiff alleges injury to rights conferred by statute, two separate standing-related inquiries
are implicated: whether the plaintiff has Article III standing (constitutional standing) and whether
the statute gives that plaintiff authority to sue (statutory standing). Katz v. Pershing, LLC, 672 F.3d
64, 75 (1st Cir. 2012); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89
(1998). These are necessarily two separate and distinct inquiries, and the court must first address
the issue of Article III standing. That inquiry presents a question of justiciability; if it is lacking, a
federal court has no subject-matter jurisdiction over the claim. See Steel Co., 523 U.S. at 92–94. The
“hard floor” of Constitutional standing requires an injury in fact. Summers v. Earth Island Inst., 555
U.S. 488, 497 (2009). Here, the Second Amended Complaint does not state a plausible injury in fact
on behalf of Plaintiff Burchfield which is sufficient to establish Article III standing to pursue these
claims. Whether it states a plausible injury on behalf of Plaintiff Jenkins is, perhaps, a closer
question, but the court concludes that all of these claims are due to be dismissed for the reasons
The Felonious Tort Claims Fail to State A Claim As A Matter of Law
Plaintiffs claim that they may recover civil damages for alleged violations of criminal statutes
based upon a century of Alabama precedent. However, in Martinson v. Cagle, 454 So.2d 1383 (Ala.
1984), the Alabama Supreme Court clarified its much earlier statement that “every criminal act
which injures the person or property of another is also a civil tort, redressable by the courts.” 454
So.2d at 1385 (quoting Hardie-Tynes Mfg. Co. v. Cruse, 189 Ala. 66, 66 So. 657, 661 (1914)). In
Martinson, the court explained that, although an act that constitutes a crime may also serve as the
basis of a civil action, civil liability does not exist automatically. Rather, civil liability exists “only
if the acts complained of violate the legal rights of the plaintiff, constitute a breach of duty owed to
the plaintiff, or constitute some cause of action for which relief may be granted.” Id.; see also Prill
v. Marrone, 23 So.3d 1, 11 (Ala. 2009); Hardesty v. CPRM Corp., 391 F.Supp.2d 1067, 1071 (M.D.
Ala. 2005). Counts which merely allege that criminal acts were committed and that the Plaintiffs
were thereby injured do not state a civil cause of action. Martinson, 454 So.2d at 1385; Prill, 23
So.3d at 11; Hardesty, 391 F.Supp.2d at 1071. Because Counts XVI through XXI do no more than
allege that the Defendants violated a criminal statute and that the Plaintiffs were damaged, these
counts do not state a claim and are due to be dismissed.
Burchfield’s Counts V through VIII Fail to State a Claim on behalf of
In Counts V through VIII, Burchfield asserts Retaliatory Hostile Environment and Retaliatory
Discharge claims based upon both Title VII and Section 1981. In these counts, Burchfield complains
of conduct directed toward Jenkins which occurred after Burchfield’s employment had been
terminated. Burchfield’s allegations do not state valid claims.
In support of their arguments on this question, Plaintiffs rely upon Thompson v. North
American Stainless, LP, 131 S.Ct. 863 (2011), but that reliance is misplaced. In Thompson, both the
plaintiff and his fiancee were still employed by the defendant at the time of the unlawful action.
Thompson, 131 S.Ct at 867. Indeed, the EEOC guidance relied upon in that case stated that such
retaliation can be “challenged by both the individual who engaged in protected activity and the
relative, where both are employees.” EEOC Compliance Manual § 8–II(B)(3)(c) (1998) (emphasis
added). That is not the situation presented here. At the time relevant here, Burchfield was no longer
an employee. Although Jenkins may assert claims on his own behalf for conduct allegedly directed
at him, Burchfield, his already-terminated uncle, may not.
Hostile environment harassment occurs when an employee’s “workplace is permeated with
‘discriminatory intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment.’ “ Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d
49 (1986)) (emphasis added). In order to establish a hostile environment claim, the plaintiff must
show that: (1) he or she is a member of a protected class; (2) he or she was subject to unwelcome
harassment; (3) the harassment was based on his or her protected category; and, (4) the harassment
was severe and pervasive enough to affect a term, condition, or privilege of employment. Henson v.
City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982) (emphasis added). Not only was Burchfield
not the victim of the conduct alleged in these counts, but he was not even an employee at the time
it allegedly occurred. Therefore, the terms and conditions of his employment could not have been
affected. Only those incidents of which a plaintiff is aware during his employment can alter the
terms and conditions of employment and therefore serve as the basis for a hostile environment claim.
See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995)(“[S]ome of the
incidents relied upon were not made known to Edwards until after her termination and, therefore,
could not have contributed to her subjective view of a hostile environment.”).
Similarly, in order to establish a prima facie case of retaliation under either Title VII or
Section 1981, an employee must show that: (1) he engaged in a protected activity; (2) he suffered
an adverse employment action; and (3) there was a causal connection between the protected activity
and the adverse employment action. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001). In his retaliatory discharge allegations contained in Counts VII and VIII, Burchfield does
not allege that he suffered any adverse employment action. Rather he asserts that Jenkins suffered
the adverse employment action. Such a claim fails at the most basic level.
For these reasons, Counts V through VIII are due to be dismissed with prejudice.
Jenkins’s Counts IX and XI Under Title VII are Due to be Dismissed
Defendant IC moves to dismiss Jenkins’s Title VII claims because he failed to satisfy
administrative prerequisites. Jenkins filed his own EEOC charge, but has not received a notice of
right to sue. Jenkins asserts that he is not required to satisfy administrative prerequisites on his own,
but instead may rely on Burchfield’s satisfaction of those prerequisites. For the reasons stated below,
the court disagrees.
“Prior to filing a Title VII action ... a plaintiff first must file a charge of discrimination with
the EEOC.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).2 However,
merely filing the EEOC charge is insufficient to satisfy the administrative prerequisites to a Title VII
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
claim. There are actually two administrative prerequisites to the filing of a civil action under Title
VII that a Title VII plaintiff must satisfy: he must “(1) file timely charges of employment
discrimination with the EEOC, and (2) receive and act upon the EEOC’s statutory notice of the right
to sue.” Brown v. City of Cleveland, 294 Fed.Appx. 226, 233 (6th Cir. 2008). IC has moved to
dismiss Jenkins’s Title VII claim because, like Burchfield initially, based upon the record before the
court, Jenkins has undisputedly failed to satisfy the second part of the administrative prerequisites.
Although Jenkins has filed an EEOC charge, there is no evidence in the record that the EEOC has
completed its investigation and issued Jenkins a notice of right to sue.
“The purpose of this exhaustion requirement ‘is that the [EEOC] should have the first
opportunity to investigate the alleged discriminatory practices to permit it to perform its role in
obtaining voluntary compliance and promoting conciliation efforts.” Gregory v. Ga. Dep’t of
Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (citing Evans v. U.S. Pipe & Foundry Co.,
696 F.2d 925, 929 (11th Cir. 1983) and Wu v. Thomas, 863 F.2d 1543, 1548 (11th Cir.1989) (“The
purpose of the filing requirement is to insure that the settlement of grievances be first attempted
through the office of the EEOC.”)) (emphasis added).
Admittedly, in certain circumstances, one Plaintiff may “piggyback” on the EEOC charge
and administrative filings of another. “A plaintiff may piggyback on another plaintiff’s charge
provided “‘(1) the relied upon charge [to which he is piggybacking] is not invalid, and (2) the
individual claims of the filing and non-filing plaintiff [the named filing plaintiff and the
piggybacking plaintiff] arise out of similar discriminatory treatment in the same time frame.’” Hipp
v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001) (quoting Calloway v. Partners
Nat’l Health Plans, 986 F.2d 446, 449 (11th Cir. 1993)) (emphasis added). Here, the conduct about
which Jenkins complains occurred during a different time period than the conduct about which
Burchfield complained in his EEOC charge. Indeed, the conduct Jenkins complains about occurred
after Burchfield’s employment had already been terminated. It is also arises out of a different type
of alleged mistreatment. Therefore, Jenkins may not piggyback on Burchfield’s administrative
Plaintiffs cite Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981) for the
proposition that Jenkins need not exhaust administrative prerequisites because Burchfield’s EEOC
charge is properly before the court. However, Gupta held that it is unnecessary for a plaintiff to
exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge
filed by that plaintiff. Gupta, 411 F.2d at 413-14. Therefore, Gupta is inapposite because it
contemplates the retaliation claim will grow out of the same employee’s underlying charge.
Here, the record does not reflect that Plaintiff Jenkins has satisfied the administrative
prerequisites to the Title VII claims stated in the Second Amended Complaint; therefore, those
claims are due to be dismissed without prejudice.
Jenkins’s Counts X and XII Under Section 1981 are Due to be Severed
Defendants IC and Welch both moved to dismiss Plaintiff Jenkins’ Section 1981 claims.
However, as discussed above, to survive a motion to dismiss, a complaint must “state a claim to
relief that is plausible on its face” and which “permit[s] the court based on its “judicial experience
and common sense ... to infer more than the mere possibility of misconduct.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). The court has carefully considered Defendants’ Motions and
the Second Amended Complaint and is satisfied that Plaintiff Jenkins has satisfied applicable
pleading standards to survive a motion to dismiss his Section 1981 claims.
Defendant IC also raises the issue of whether Plaintiffs’ claims are properly joined. Under
Federal Rule of Civil Procedure 20, a plaintiff may join claims against a defendant if the claims
“aris[e] out of the same transaction, occurrences, or series of transactions or occurrences and if any
question of law or fact common to all these persons will arise in the action.” Fed.R.Civ.P. 20(a)(2).
Thus, a party seeking joinder under Rule 20 must establish two conditions: 1) a right to relief arising
out of the same transactions or occurrence, or series of transactions or occurrences, and 2) some
questions of law or fact common to all persons seeking to be joined. See Id. The central purpose of
Rule 20 is to promote judicial efficiency and expedite the resolution of claims, thereby eliminating
unnecessary additional lawsuits. Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1323 (11th Cir.
Rule 21, however, provides that “the court may at any time, on just terms, add or drop a
party,” and “[t]he court may also sever any claim against a party.” Fed.R.Civ.P. 21. Rule 42(b) also
allows for separate trials where the efficiency of a consolidated trial is outweighed by its potential
prejudice. Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir. 1996). Thus, the district court
is afforded broad discretion under Rules 21 and 42(b) to sever claims, drop parties, order separate
trials or make such other orders as will prevent delay or prejudice. Anderson v. Moorer, 372 F.2d
747, 750 n. 4 (5th Cir. 1967). “‘Whether severance would facilitate ... judicial economy is among
the factors a court may examine while determining whether to sever [ ] claims.’” Formosa v. Lowe’s
Home Centers, Inc., 806 F.Supp.2d 1181, 1187 (N.D. Ala. 2011) (quoting Tillis v. Cameron, 2007
WL 2806770, at *5 (M.D. Ala. 2007)).
The remaining claims (and, in reality, all of the claims) of Burchfield and Jenkins do not arise
out of the same transactions or occurrences, or series of transactions or occurrences. The misconduct
complained of by Jenkins occurred after Burchfield’s employment had already been terminated and
involved separate and distinct occurrences. Burchfield’s claims have been pending before the court
for over a year. Jenkins has yet to satisfy administrative prerequisites to certain of his claims.
Therefore, the court will exercise its discretion under Rule 21 to sever the claims of Plaintiffs
Burchfield and Jenkins.
For the reasons stated above, the court concludes that:
Defendant Industrial Chemicals, Inc.’s Motion to Dismiss Second Amended
Complaint (Doc. # 37) is due to be granted in part and denied in part;
Defendant Carlos Maravilla’s Motion to Dismiss Plaintiffs’ Second Amended
Complaint (Doc. # 49) is due to be granted; and
Defendant William L. Welch, Jr.’s Motion to Dismiss Second Amended Complaint
(Doc. # 54) is due to be granted in part and denied in part.
Counts I through IV will remain pending in this case.
Counts VI and VIII will be severed and a new civil action will be opened on behalf
of Plaintiff Jenkins wherein he may assert his remaining claims against IC and Welch.
Counts V and VII will be dismissed without prejudice.
Counts IX through XXI will be dismissed with prejudice.
A separate order will be entered.
DONE and ORDERED this
day of November, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?