Gadling-Coal v. Lagory et al
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/19/2015. (AVC)
2015 Mar-19 PM 04:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MARK LAGORY; WILLIAM
COCKERHAM; LISA BAKER;
UNIVERSITY OF ALABAMA AT
BIRMINGHAM; UNIVERSITY OF
ALABAMA AT BIRMINGHAM
BOARD OF TRUSTEES,
CASE NO. 2:12-CV-2882-SLB
This case is before the court on Defendants’ Motion to Dismiss Plaintiff’s Third
Amended Complaint. (Doc. 31.)1 Because Counts III, IV, and V in plaintiff’s Third
Amended Complaint fail to comply with the court’s April 2, 2014 Order, and because
Count II is due to be dismissed for failure to state a claim upon which relief may be
granted, the court will dismiss Counts II through V without prejudice. Therefore,
Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint, (Doc. 31), is due
to be granted as to Counts II through V and denied as to Count I.
Reference to a document number, (“Doc. ___”), refers to the number assigned to
each document as it is filed in the court’s record.
Plaintiff filed a Complaint, (Doc. 1), on September 6, 2012, which the court
allowed plaintiff to replead. (Doc. 18.) The court instructed plaintiff that an Amended
Complaint must comply with Federal Rules of Civil Procedure 8(a), 8(d)(1), 10(b), and
11(b), that “[e]ach count in the Amended Complaint should contain no more than one
discrete claim for relief,” and that the Complaint must “contain allegations of fact which
support each discrete claim.” (Id. at 1-2.) Plaintiff filed a Second Amended Complaint,
(Doc. 20), and a proposed Third Amended Complaint, (Doc. 27). Because those
Complaints suffered from fatal flaws, the court struck plaintiff’s Second Amended
Complaint and the proposed Third Amended Complaint, and granted plaintiff leave to file
an Amended Complaint in compliance with the Federal Rules of Civil Procedure, as
explained in the court’s April 2, 2014 Memorandum Opinion. (Doc. 29 at 1-2.) Plaintiff
filed a Third Amended Complaint, (Doc. 30), on May 15, 2014, and defendants filed the
instant Motion to Dismiss, (Doc. 31).
In their Motion to Dismiss, defendants argue that plaintiff’s Third Amended
Complaint fails to comply with the court’s April 2, 2014 Order because it does not
“clearly specify what facts support which claims, against which Defendants.” (Doc. 31
¶¶ 7, 10, 14.) Defendants also contend that plaintiff’s discrimination claims fail because
plaintiff’s Complaint does not “identify other faculty members who were treated more
favorably and who were not in the same protected classification as the Plaintiff.” (Id. ¶ 9.)
Plaintiff responds that “each Count I through Count V states a specific claim and outline
[sic] the facts to support each claim.” (Doc. 33 ¶ 10.) Defendants are correct that several
of the Counts in plaintiff’s Complaint are deficient and are due to be dismissed.
The court once again looks to Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955 (11th Cir. 2008), for direction in reading plaintiff’s Third Amended Complaint.
Rule 8(a)(2) . . . requires a complaint to contain ‘a short and plain statement
of the claim showing that the pleader is entitled to relief.’ Rule 10(b)
instructs that ‘[e]ach claim founded on a separate transaction or
occurrence . . . [must] be stated in a separate count . . . .’2 These Rules work
together to require the pleader to present [her] claims discretely and
succinctly, so that [her] adversary can discern what [s]he is claiming and
frame a responsive pleading, [and] the court can determine which facts
support which claims . . . .”
Id. at 980 n.57 (citations and internal quotation marks omitted) (latter emphasis added).
As this court stated in its previous Memorandum Opinion, “[s]eparate counts are needed,
each identifying the specific legal cause of action asserted and the specific facts that make
up that cause of action.” (Doc. 28 at 4.) The court directed plaintiff to “list as many
counts as needed to separately identify each actionable occurrence by each defendant,”
(id.), and noted that “[l]umping all . . . acts into two ‘claims’ leaves the reader to sort
through which acts might constitute a ‘discrete act’ of discrimination or retaliation, and
Again, this court purposely leaves out the Rule’s qualifying phrase, “[i]f doing
so would promote clarity” because this is unquestionably a case in which the need for
clarity demands that the complaint identify each occurrence that forms a discrete claim in
a separate count.
which are acts not actionable alone but, accumulated, become actionable harassment,” (id.
at 3 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002))).
First, the court will address the Counts which fail to comply with the court’s
explicit instructions in its previous Memorandum Opinion: “Plaintiff should list as many
counts as needed to separately identify each actionable occurrence by each defendant,”
and plaintiff should provide “the specific facts that make up [each] cause of action.”
(Doc. 28 at 4.) Counts III, IV, and V, which incorporate every paragraph from the fact
section, contain no specific facts to support the claims being raised and leave the court
and defendants to determine which facts from the fact section support those claims. (See
Doc. 30 at 8-10.) While incorporating previous paragraphs by reference is not fatal to a
claim, the court’s previous Opinion made plaintiff aware that the practice of incorporating
every paragraph from the fact section is discouraged, unhelpful, and does not suffice to
state a claim when there are no specific facts provided in a Count connecting plaintiff to
the claim being raised. (See Doc. 28 at 3 (“[The] practice of full incorporation creates
‘confusion as to which facts plaintiff was relying on for each Count.’”) (quoting Turner v.
McKesson Corp., 2:12-cv-2053-SLB, 2013 WL 4727651 n.9 (N.D. Ala. Sept. 3, 2013)).)
Count Five, in particular, suffers from every fatal flaw the court identified in its
previous Order: plaintiff makes conclusory allegations without including any facts
showing retaliation; plaintiff brings claims under multiple causes of action in one Count;
and the Count asserts claims against all defendants, thereby directly contravening this
court’s instruction to “list as many counts as needed to separately identify each actionable
occurrence by each defendant.” (Doc. 28 at 4 (emphasis added); see Doc. 30 at 10.)
Given plaintiff’s disregard for the court’s previous Order, the court will dismiss
plaintiff’s claims that fail to comply with the Order pursuant to Federal Rule of Civil
Procedure 41(b), which provides, “If the plaintiff fails . . . to comply with these rules or a
court order, a defendant may move to dismiss the action or any claim against it.” Fed. R.
Civ. P. 41(b). The court also notes that “[a] district court is not required to grant a
plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented
by counsel, never filed a motion to amend nor requested leave to amend before the district
court.” Wagner v. Daewoo Heavy Industries Am. Corp., 314 F.3d 541, 542 (11th Cir.
2002). As plaintiff is represented by counsel, has not filed a motion to amend her latest
Complaint, and has repeatedly filed Complaints that do not comply with the Federal Rules
or the court’s instructions, dismissal is an appropriate remedy.3 (See Docs. 18 and 29.)
The court now turns to the remaining two Counts. Counts I and II each assert a
discrete claim for discrimination in violation of Title VII against UAB, and both Counts
include at least some facts supporting the claim. Under Count I, in which plaintiff asserts
a disparate treatment claim for race discrimination, plaintiff names a fellow employee,
The court has not addressed defendants’ immunity argument, (see Doc. 31 ¶ 11),
because defendants’ argument applies only to the individual defendants, and the court
will enter an Order contemporaneously with this Memorandum Opinion dismissing all
Counts against the individual defendants for plaintiff’s failure to comply with the court’s
previous Order in drafting those Counts .
Lisa Baker, who is not in plaintiff’s protected class and alleges that UAB treated Baker
more favorably than plaintiff by providing Baker “mentoring denied the plaintiff,” (Doc.
30 ¶ 32), and by firing plaintiff and retaining Baker, even though Baker had a “less
accomplished history of research, service, and teaching,” (id. ¶¶ 31-32). Plaintiff also
alleges that Baker “was allowed to skip the requirement of publishing during the first
two-years of her initial contract,” (id. ¶ 32), although plaintiff does not allege that she
published during the first two years of her initial contract, so this allegation does little to
show discrimination. However, because plaintiff lists acts of alleged discrimination under
Count I that may be actionable under Title VII, the court will not dismiss Count I.4
Count II is a discrete claim for gender discrimination in violation of Title VII
against UAB, but unlike Count I, Count II contains no allegations that UAB treated a
specific employee belonging to a group outside plaintiff’s protected class more
favorably, and none of plaintiff’s Equal Employment Opportunity Commission
(“EEOC”) charges contain any such allegations.5 Count II states that Mark Lagory sent
plaintiff threatening emails while she was on maternity leave and threatened to terminate
The court notes that Count I suffers from similar flaws as plaintiff’s other
counts. It attempts to allege different Title VII claims under the same Count—i.e.,
disparate treatment and termination claims. Despite plaintiff’s failure to follow the court’s
instructions with regard to Count I, the court will not dismiss this Count.
The court may consider the EEOC charges along with the Complaint. See
Ezekiel v. Tift Cnty. Sch. Dist., No. 7:08-cv-127 (HL), 2010 WL 431977, at *4 (M.D. Ga.
Feb. 1, 2010) (“[T]he EEOC Complaints are attached to the complaint and are proper
matters for the court to consider as they are central to the complaint.”).
her employment three days after plaintiff gave birth to twins. (Doc. 30 ¶ 37.) To show
gender discrimination, plaintiff states only that “other employees were treated more
advantageously than the Plaintiff because of her race.” (Doc. 8 ¶ 37.) Even assuming
plaintiff intended to state that UAB treated other employees more advantageously than
her because of her gender, plaintiff’s statement does not state a claim for gender
While plaintiff is not required to allege facts in the complaint sufficient to make
out a McDonnell Douglas prima face case, plaintiff’s bare statement that “other
employees” received more favorable treatment is the type of conclusory allegation that
“epitomizes speculation and therefore does not amount to a short and plain statement of
[her] claim under Rule 8(a).” Davis, 516 F.3d at 974 (finding that the plaintiffs did not
state a claim for race discrimination where the pleadings stated only that the “plaintiffs
were ‘denied promotions . . . and treated differently than similarly situated white
employees solely because of  race’”); see also Arafat v. Sch. Bd. of Broward Cnty., 549
F. App’x 872, 874 (11th Cir. Dec. 4, 2013) (stating that plaintiff’s complaint did “not
plausibly suggest intentional discrimination” where plaintiff “referenced younger males”
but did not “identify any valid comparators to undergird her disparate treatment claims”);
Uppal v. Hosp. Corp. of America, 482 F. App’x 394, 396 (11th Cir. June 13, 2012)
(finding allegation that “‘[o]ther similarly situated employees outside Plaintiff’s
protected classes’ engaged in similar misconduct, but were not disciplined” did not state
a claim for discrimination). Plaintiff does not identify any male comparators treated more
favorably or state the ways in which defendant treated other employees more favorably.
The facts alleged under Count II do not satisfy the pleading standard of Rule 8(a)(2), and
Count II is, therefore, due to be dismissed for failure to state a claim.
The court will dismiss Count II without prejudice for failure to state a claim upon
which relief may be granted and will dismiss Counts III, IV, and V without prejudice for
non-compliance with the Federal Rules of Civil Procedure and the court’s previous
Orders. Therefore, Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint
Filed May 15, 2014, (Doc. 31), is due to be granted as to Counts II through V and denied
as to Count I.
DONE this 19th day of March, 2015.
SHARON LOVELACE BLACKBURN
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?