Equal Employment Opportunity Commission v. Labor Solutions of AL LLC

Filing 33

MEMORANDUM OPINION AND ORDER GRANTING 14 MOTION to Dismiss. However, the EEOC may filed an Amended Complaint within 14 days which cures the deficiencies noted herein. Should no Amended Complaint be filed by that date, this case will be dismissed. Signed by Judge Virginia Emerson Hopkins on 3/17/2017. (JLC)

FILED
2017 Mar-17 PM 03:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
) Case No.: 4:16-CV-1848-VEH
v.
)
)
LABOR SOLUTIONS OF AL LLC, )
f/k/a EAST COAST LABOR
)
SOLUTIONS, LLC,
)
)
Defendant.
)

MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Equal Employment Opportunity Commission
(the “EEOC”) against Labor Solutions of Alabama, LLC (“LSA”) which the EEOC
contends “was formed to assume the business operations previously performed by”
a company named East Coast Labor Solutions, LLC (“East Coast”). (Doc. 1 at 2). The
EEOC brings the action “on behalf of Oscar Corzo, Jorge Mercado, and a class of at
least eight other Charging Parties and aggrieved individuals” (the “Claimants”), and
claims that East Coast “subjected Claimants to discriminatory treatment based on
their national origin,” in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e through 2000e-17 (“Title VII”). (Doc. 1 at 1). The EEOC also claims
that East Coast “failed to accommodate [the Claimant’s] disabilities” in violation of

the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (the “ADA”). (Doc.
1 at 1).1
The case comes before the Court on the Defendant’s motion to dismiss the
Complaint “pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively,
Federal Rule of Civil Procedure 12(b)(6).” (Doc. 14 at 1). For the reasons stated
herein, the motion will be GRANTED, but the Plaintiff will be given the opportunity
to amend to correct the deficiencies noted herein.
I.

APPLICABLE STANDARDS
This Court has previously noted:
Generally, jurisdictional challenges are addressed under Rule 12(b)(1),
whereas Rule 12(b)(6) provides for dismissal for failure of a party to
state a claim for which relief can be granted. See Ramming v. United
States, 281 F.3d 158, 161 (5th Cir.2001) (stating that where “a Rule
12(b)(1) motion is filed in conjunction with other Rule 12 motions, the
court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” (citing Hitt v. City of Pasadena,
561 F.2d 606, 608 (5th Cir.1977)).

Harris v. Bd. of Trustees Univ. of Alabama, 846 F. Supp. 2d 1223, 1229–30 (N.D.
Ala. 2012) (Hopkins, J.).
A.

Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to assert

1

Instead of two “counts” the Complaint has two sections–one entitled “Statement of Title
VII Claims,” and one entitled “Statement of ADA Claims.”
2

the defense of lack of subject-matter jurisdiction. A motion to dismiss based on lack
of subject-matter jurisdiction should be granted “only if it appears certain that the
plaintiff cannot prove any set of facts in support of his claim that would entitle
plaintiff to relief.” Ramming, 281 F.3d at 161. Lack of subject-matter jurisdiction may
be found through an examination of: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts and the court’s resolution of disputed facts. Id.
Because the burden of proof on a motion to dismiss for lack of subject-matter
jurisdiction is on the party asserting jurisdiction, the plaintiff “constantly bears the
burden of proof that jurisdiction does in fact exist.” Id. at 161 (citing McDaniel v.
United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995) and Menchaca v. Chrysler
Credit Corp, 613 F.2d 507, 511 (5th Cir. 1980)).
Attacks on subject-matter jurisdiction take two forms: (1) facial attacks, and
(2) factual attacks. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Facial attacks on a
complaint “require the court merely to look and see if the plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff’s]
complaint are taken as true for the purposes of the motion.” Lawrence, 919 F.2d at
1529 (quoting Menchaca, 613 F.2d at 511). Factual attacks challenge “the existence
3

of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings, such as testimony and affidavits, are considered.” Id. (same).
If a defendant makes a factual attack upon the court’s subject matter
jurisdiction, submitting evidentiary materials, the plaintiff is “also required to submit
facts through some evidentiary method and has the burden of proving by a
preponderance of the evidence that the trial court does have subject matter
jurisdiction.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
“[A] plaintiff must have ample opportunity to present evidence bearing on the
existence of jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th
Cir. 2000) (quoting Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.
1991)). “Although the plaintiff bears the burden of proving the court’s jurisdiction,
the plaintiff should be given the opportunity to discover facts that would support his
allegations of jurisdiction.” Morrison, 228 F.3d at 1273 (quoting Majd-Pour v.
Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984)).
B.

Rule 12(b)(6)

Generally, 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, to survive a motion to dismiss brought under
Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.”
4

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
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, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and
footnote omitted). 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 “naked assertion[s]”
without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).

5

II.

FACTS ALLEGED IN THE COMPLAINT
A.

The “Employer(s)”

According to the Complaint,2 East Coast, a temporary staffing firm,
incorporated in West Virginia in 2010, never registered to do business in Alabama,
and “terminated in November [of] 2013.” (Doc. 1 at 4, ¶12). East Coast “conducted
business in the State of Alabama through its partnership and agreement with Pilgrim’s
Pride Corporation (‘Pilgrim’) at its Guntersville, [Alabama] poultry processing
facility.” (Doc. 1 at 2, ¶3). The EEOC alleges that “[i]n 2008, Pilgrim entered into a
temporary staffing agreement with East Coast,” wherein “East Coast was to provide
ongoing temporary staffing services and workers.” (Doc. 1 at 4, ¶16) (emphasis
supplied). The contract provided that “each employee recruited and staffed for
temporary work at Pilgrim would be an employee of East Coast.” (Doc. 1 at 4, ¶16)
(emphasis supplied).
The Complaint states that “[u]pon information and belief[,] East Coast
partnered with its owner, Labor Solutions[,] LLC [] (“Labor Solutions”) to
accomplish its mission.” (Doc. 1 at 2, ¶4) (emphasis supplied). The Complaint notes
that “if [it is] confirmed” that Labor Solutions partnered with East Coast, “Labor

2

The document the Court refers to as the “Complaint” is document 1, which the EEOC
has oddly entitled “Nature of the Action.”
6

Solutions may be joined as a real party in interest.” (Doc. 1 at 2, ¶4).
“Labor Solutions of Alabama, LLC,” (“LSA”), the only Defendant in this case,
is a different entity from “Labor Solutions.” LSA is also a temporary staffing agency,
incorporated in West Virginia in October of 2014, nearly a year after East Coast
ceased operations. LSA has never been registered to do business in Alabama, and
“remains active.” (Doc. 1 at 4, ¶13). According to the Complaint, “East Coast, Labor
Solutions, and [LSA] share the same managing officers, principal office address, and
company email accounts.” (Doc. 1 at 4, ¶14).3 It is alleged that “[LSA] was formed
to assume the business operations previously performed by East Coast, and has
continuously conducted business in the State of Alabama since 2014.” (Doc. 1 at 2).
The Complaint alleges that “Defendant [LSA] . . . formerly known as East Coast . .
. subjected Claimants to discriminatory treatment based on their national origin [and]
failed to accommodate their disabilities.” (Doc. 1 at 1) (emphasis supplied).
Because they are not relevant to the instant motion, the Court need not, and will
not, set out the Complaint’s specific allegations of discrimination and failure to
accommodate. However, since all such actions concern conduct by East Coast, which
ceased operations in November of 2013, logically, such acts must have occurred prior

3

The Complaint also alleges that the three entities compromise “a joint enterprise.” (Doc.
1 at 4, ¶14). This allegation is a legal conclusion, not a fact. Accordingly, it is not included in the
Court’s recitation of the facts alleged in the Complaint.
7

to November of 2013. Since LSA was not formed until October of 2014, none of the
alleged acts were committed directly by it.
B.

Administrative Prerequisites

According to the Complaint, “[m]ore than thirty days prior to the institution of
this lawsuit, Charging Parties filed charges of discrimination with the Commission
alleging violations of Title VII and the ADA by Defendant East Coast.” (Doc. 1 at 3,
¶8) (emphasis supplied). “On November 21, 2014, the Commission . . . issued to East
Coast a Letter of Determination finding reasonable cause to believe that Title VII and
the ADA were violated with respect to each Charging Party, as well as a class of
employees and former employees[.]” (Doc. 1 at 3, ¶9) (emphasis supplied). At the
same time, the Commission invited East Coast “to join with the Commission in
informal methods of conciliation to endeavor to eliminate the unlawful employment
practices and provide appropriate relief.” (Doc. 1 at 3, ¶9). “On August 2, 2015, the
Commission issued to East Coast a Notice of Failure of Conciliation advising East
Coast that the Commission was unable to secure from it a conciliation agreement
acceptable to the Commission with respect to the charges filed[.]” (Doc. 1 at 3, ¶10)
(emphasis supplied).

8

III.

ANALYSIS
A.

The Rule 12(b)(1) Motion

The Defendant first alleges that the complaint should be dismissed because “it
fails to allege that [LSA] employed the Claimants.” (Doc. 14 at 7). It argues that the
failure to allege that LSA employed the Claimants means that the Complaint should
be dismissed “for lack of subject matter jurisdiction and failure to state a claim under
Title VII and the ADA.” (Doc. 14 at 8). For this proposition it cites Brown v. ATG,
Inc., No. 2:15-CV-00161-AKK, 2015 WL 3545984 (N.D. Ala. June 8, 2015) (Kallon,
J.) and Arrington v. Alabama Power Co., No. 2:16-CV-01355-JEO, 2017 WL 192756
(N.D. Ala. Jan. 18, 2017) (Ott, M.J.). Neither of these cases stand for the proposition
that the failure to allege that a defendant was the Claimant’s employer deprives this
Court of jurisdiction. See, Arrington, 2017 WL 192756, at *3 (dismissing case
pursuant to Rule 12(b)(6) because “there is no allegation in the complaint that [the
Defendant] was [the Plaintiff’s] employer.”); Brown, 2015 WL 3545984 at *3
(dismissing complaint under Rule 12(b)(6) because defendant “is not a statutory
‘employer’ that is subject to liability under Title VII and the ADA.”). Further, the
Court is aware of no such rule.
The Defendant also argues that the EEOC has failed to exhaust administrative
prerequisites to filing this action. As this Court noted in Harris v. Bd. of Trustees
9

Univ. of Alabama, 846 F. Supp. 2d 1223, 1230 (N.D. Ala. 2012), “[e]xhaustion of
administrative remedies in Title VII cases functions as an administrate precondition
to suit, rather than a jurisdictional prerequisite that would trigger application of Rule
12(b)(1).”4
The Court determines that it has subject matter jurisdiction over this claim
seeking relief pursuant to Title VII and ADA since it “aris[es] under the . . . laws . .
4

The Court wrote:

Exhaustion of administrative remedies in Title VII cases functions as an administrate
precondition to suit, rather than a jurisdictional prerequisite that would trigger
application of Rule 12(b)(1). See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (“We hold that filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling.”); Jackson v. Seaboard Coast Line R. Co., 678 F.2d
992, 1003 (11th Cir.1982) (citing Zipes and concluding “that the conditions
precedent to filing a Title VII suit are not jurisdictional prerequisites”). As such, the
court finds that it is more appropriately treated under the Rule 12(b)(6) failure to state
a claim standard. See, e.g., McIntyre v. Aurora Cares, LLC, No. CA 10–0208–KD–C,
2011 WL 2940939, at *2 n. 3 (S.D.Ala. July 21, 2011) (“[C]ourts tend to treat such
motions as seeking dismissal in accordance with Rule 12(b)(6) as opposed to Rule
12(b)(1).”); Banks v. Ackerman Security Systems, Inc., No. 1:09–CV–0229–CC, 2009
WL 974242, at *2 n. 3 (N.D.Ga. April 10, 2009) (“The Court dismisses these claims
pursuant to Rule 12(b)(6) rather than 12(b)(1) because exhaustion of administrative
remedies is not a jurisdictional prerequisite.”); Crawford v. Winter, No.
2:07–cv–702–FtM–29SPC, 2008 WL 3260509, at *1 (M.D.Fla. Aug. 7, 2008)
(considering motion to dismiss for failure to exhaust administrative remedies
pursuant to Rule 12(b)(6) rather than Rule 12(b)(1)); but see Luke v. Residential
Elevators, Inc., No. 4: 10–cv–00524–SPM–WCS, 2011 WL 311370, at *4 (N.D.Fla.
Jan. 28, 2011) (“Failure to exhaust administrative remedies prior to filing suit
warrants dismissal based upon lack of subject matter jurisdiction under Rule
12(b)(1).”).
Harris v. Bd. of Trustees Univ. of Alabama, 846 F. Supp. 2d 1223, 1230 n. 7 (N.D. Ala. 2012)
(Hopkins, J.).
10

. of the United States.” 28 U.S.C. § 1331.
B.

The Rule 12(b)(6) Motion
1.

Successor Liability
a.

The Federal-Common-Law Standard5 for Determining
Successor Liability Applies to Title VII and ADA
Actions

The allegations in the Complaint allege that only East Coast, not LSA,
employed all of the temporary employees of Pilgrim. Further, the Complaint does not
allege that East Coast and the Defendant were “joint employers.”6 However, the
EEOC argues that it has alleged plausible facts to infer so-called “successor liability.”
(Doc. 25 at 6).
It has been noted:
The general rule is that a successor entity is not responsible for
the debts and liabilities of a predecessor unless the successor agrees to
assume those obligations. See Wheat, First Sec., Inc. v. Green, 993 F.2d
814, 821 (11th Cir. 1993). However, beginning with the United States
Supreme Court's unanimous decision in Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973), this general
rule yields in the context of labor and employment disputes, where
important employment-related policies may justify imposing liability
against a successor for its predecessor’s discriminatory actions. As the
Supreme Court observed in Golden, the reason for imposing liability in
5

The phrase “federal-common-law standard” is used in Hatfield v. A+ Nursetemps, Inc.,
651 F. App'x 901, 906 (11th Cir. 2016).
6

Nor could it, since it affirmatively states that the two entities never existed at the same

time.
11

these circumstances is that, although the successor company “was not a
party to the unfair labor practices” and now “operate[s] the business
without any connection with [its] predecessor,” the successor is in the
best position to either remedy the prior unfair labor practices or to seek
indemnification from its predecessor. Id. at 171 n.2, 94 S.Ct. 414.
Therefore, labor strife is best avoided, federally guaranteed rights are
best enforced, and victimized employees are best protected by holding
the successor responsible. Id. at 185, 94 S.Ct. 414.
Noel v. Terrace of St. Cloud, LLC, No. 614CV597ORL40DAB, 2016 WL 1321504,
at *3 (M.D. Fla. Apr. 5, 2016) (Byron, J.), appeal dismissed (Aug. 9, 2016).
The Eleventh Circuit has held that successor liability principles apply in the
context of a Title VII action. In re Nat'l Airlines, Inc., 700 F.2d 695, 698 (11th Cir.
1983). However, it has not explicitly extended successor liability principles to the
ADA.7 The Court notes that, at 42 U.S.C. § 12117(a), the ADA invokes Title VII’s
powers, remedies, and procedures. See, 42 U.S.C .§ 12117(a) (“The powers, remedies,
and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and
2000e-9 of this title shall be the powers, remedies, and procedures this subchapter
provides[.]”). “[I]t follows that successor liability principles would equally apply to
the ADA.” Noel, 2016 WL 1321504, at *3 n. 3; see also, E.E.O.C. v. Rockwell Int'l
Corp., 36 F. Supp. 2d 1056, 1057 (N.D. Ill. 1999) (Gettleman, J.) (noting that the
Seventh Circuit had expressly adopted the doctrine of successor liability in Title VII

7

The parties do not address this issue in their briefs.
12

cases and holding that “[b]ecause the ADA incorporates the powers, remedies and
procedures of Title VII, 42 U.S.C. § 12117, the court concludes that successor
liability is available under the ADA.”); Coleman v. Keebler Co., 997 F. Supp. 1094,
1100 (N.D. Ind. 1998) (Cosbey, M.J.) (“The powers and remedies of the ADA are the
same as those available under Title VII . . . and the Seventh Circuit has approved the
successor employer doctrine in Title VII cases. . . . Thus, this Court assumes, as an
issue of first impression in this Circuit, that the successor employer doctrine is
applicable to ADA cases.”); McKee v. Am. Transfer & Storage, 946 F. Supp. 485, 487
(N.D. Tex. 1996) (Cumming, J.) (Looking to “those courts which have interpreted
Title VII, 42 U.S.C. 2000e et seq. successor liability as guidance for successor
liability of ADA claims.”); Knox v. Brundidge Shirt Corp., 942 F. Supp. 522, 527
(M.D. Ala. 1996) (Albritton, J.), aff'd, 116 F.3d 1493 (11th Cir. 1997) (applying
successor liability analysis in ADA context).
b.

There Is no set Criteria for Determining When one
Entity Is the Successor to Another

Having determined that successor liability principles apply to both Title VII
and ADA actions, the next question is what criteria should the Court examine in order
to determine whether a new entity is a successor to a previous one. Without
explanation, the parties argue for the application of the factors set out in the Southern

13

District of Florida opinion of Desporte-Bryan v. Bank of Am., 147 F. Supp. 2d 1356,
1362 (S.D. Fla. 2001) (Gold, J.), to wit:
(1) whether the successor employer had prior notice of the claim against
the predecessor; (2) whether the predecessor is able, or was able prior
to the purchase, to provide the relief requested; and (3) whether there
has been sufficient continuity in the business operations of the
predecessor and the successor to justify imposition of liability.
Desporte-Bryan, 147 F. Supp. 2d at 1362. The final factor includes such things as:
(a) whether the new employer uses the same plant; (b) whether it uses
the same or substantially the same work force; (c) whether it uses the
same or substantially the same supervisory personnel; (d) whether the
same jobs exist under substantially the same working conditions; (e)
whether the successor uses the same machinery, equipment, and
methods of production; and (f) whether he produces the same product.
Id. In Desporte-Bryan, Judge Gold stated that “[t]he case law articulates [these]
factors that the court must consider.” However, he cited no case law from the
Eleventh Circuit Court of Appeals for that proposition. Accordingly, before going “all
in” on the factors set out in Desporte-Bryan, a review of Eleventh Circuit law on this
issue is prudent.
(1)

In re Nat'l Airlines, Inc., 700 F.2d 695 (11th Cir.
1983) and the Balancing Test

In the Eleventh Circuit, the seminal case for successor liability in the
labor/employment context is In re Nat'l Airlines, Inc. In that case, the United States
District Court for the Southern District of Florida held that National Airlines’s
14

(“National’s”) maternity leave policy violated Title VII because it discriminated on
the basis of sex. Id. at 696. About three months later, the United States District Court
for the Northern District of California held that the identical policy used by Pan
American was not discriminatory on the basis of sex in violation of Title VII.
Thereafter,
Pan American acquired National through a merger. After the acquisition
was announced, the Ninth Circuit affirmed the [California district court]
decision thereby validating Pan American's policy. This opinion did not
mention the acquisition or the judgment . . . in the Southern District of
Florida.
Id. at 697. Following the merger,
Pan American continued to enforce its mandatory maternity leave policy
against pregnant flight attendants of both National and Pan American.
In September, 1980, the former National flight attendants filed a motion
in the Florida district court to enjoin Pan American from applying its
policy . . .. The district court substituted Pan American as a defendant
for National in January, 1982. Subsequently, in February, 1982, the
district court denied the injunction. The court concluded that although
Pan American would be liable as a successor corporation for money
damages arising from the National lawsuit, on balance, it would be
inequitable to restrain Pan American from pursuing a course of action
theretofore declared valid by another federal district court.
Id.
In determining that successor liability principles should apply to Title VII
cases, the Eleventh Circuit wrote:
The Supreme Court has addressed the question whether a
15

corporation that takes the place of another corporation through merger,
acquisition or otherwise (a “successor corporation”) should be held
liable for unfair labor practices of its predecessor, should be bound by
labor contracts between the predecessor and its employees, or, instead,
should not be affected by the labor relationships of its predecessor. See
Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417
U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling
Co., Inc. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973);
NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92
S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). A review of these
cases indicates that the Court balances the interests of the employees and
the employer and labor law policy generally. See, e.g., Howard Johnson
Co., 417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9, 41 L.Ed.2d at 56-57,
n. 9. Such factors as the extent to which the successor corporation
essentially continues the operations of the former corporation and
whether the new corporation had notice of the former corporation's
practices and policies are also a part of this inquiry. See, e.g., Golden
State Bottling Co., 414 U.S. at 171-174, 94 S.Ct. at 418-420, 38 L.Ed.2d
at 395-397. See also, Boeing Co. v. International Association of
Machinists and Aerospace Workers, 504 F.2d 307 (5th Cir.1974), cert.
denied, 421 U.S. 913, 95 S.Ct. 1570, 43 L.Ed.2d 779 (1975). Of greater
importance, however, is the Court's pronouncement that the test for
successor liability is fact specific and must be conducted “in light of the
facts of each case and the particular legal obligation which is at issue.”
417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9, 41 L.Ed.2d at 56-57, n. 9.
Thus, the Court emphasized that:
[t]here is, and can be, no single definition of “successor”
which is applicable in every legal context. A new
employer, in other words, may be a successor for some
purposes and not for others.
Id.
In re Nat'l Airlines, Inc., 700 F.2d at 698 (emphasis supplied).

16

The court’s opinion did not focus on continuity of operations and notice.8
Instead, the Court determined that “[u]nder these particular circumstances, the
balance strikes against enjoining Pan American from continuing its policy.” Id. at 699
(emphasis supplied). The court noted that, on the one hand “former National
attendants have a legitimate interest in working under discrimination-free
conditions.” Id. However, it found that interest to be outweighed by the fact that “Pan
American successfully defended its policy against a Title VII challenge and has fully
integrated former National attendants into its operations. It has a legitimate interest
in treating its employees in an even-handed manner.” Id. Under those circumstances,
the Eleventh Circuit determined that “the district court did not abuse its discretion in
denying injunctive relief against Pan American.” Id.
(2)

Evans Servs., Inc. v. N.L.R.B., 810 F.2d 1089 (11th
Cir. 1987)

Four years after In re Nat'l Airlines, the Eleventh Circuit addressed successor
liability again in Evans Servs., Inc. v. N.L.R.B., 810 F.2d 1089 (11th Cir. 1987). In
that case, the National Labor Relations Board (the “NLRB”), in a supplemental

8

This is likely because, on appeal, Pan American did not dispute the district court’s
determination that it was a successor corporation to National for purposes of the money judgment
entered in the Florida district court case. (See In re Nat'l Airlines, Inc., 700 F.2d at 699 n. 5). The
Eleventh Circuit noted, however, “that the Supreme Court has stated that a corporation may be a
successor for some purposes but not for others.” Id. (citing Howard Johnson Co. v. Detroit Local
Joint Executive Board, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974)).
17

backpay proceeding, charged a company named “Evans Services” with liability for
unfair labor practice for orders the Board previously issued against a company known
as “Evans Plumbing Company.” The Board based its order on a finding that Evans
Services was either an alter ego or a successor of Evans Plumbing. In making the
determination that Evans Services was the successor to Evans Plumbing Company,
the Eleventh Circuit noted that
[a] finding of successorship . . . involves a two-step inquiry. First, the
Board must find that the new business retains common aspects of the
prior business sufficient to allow the legal conclusion of
“successorship.” Second, the Board must conclude that the successor
knew of the unfair labor practices at the time it purchased the business.
Evans Servs., 810 F.2d at 1092 (citing Golden State Bottling Co. v. N.L.R.B., 414 U.S.
168, 184, 94 S. Ct. 414, 425, 38 L. Ed. 2d 388 (1973)). The court then held that
the evidence more than satisfies the first requirement. The boards of
directors of the two corporations were primarily the same. John Mancin
III was president of both the old and new businesses. Elizabeth Mancin
was beneficial owner of Evans Plumbing and the majority stockholder
of Evans Services. The same equipment, the same location, essentially
the same line of business, many of the same employees, and even the
same telephone directory advertisement linked the two corporations.
Moreover, Evans Services sprang into existence the day after Evans
Plumbing closed its doors.
Id. at 1092–93. The court did not initially state why it determined these facts to be so
critical to the analysis. However, later in its opinion the court noted that “to find
successorship the [Court] will consider not merely a change in title to the assets, but
18

other factors, as well.” Id. at 1093. It then referenced a “non-exhaustive list of
successorship factors” set out in NLRB v. Jarm Enterprises, Inc., 785 F.2d 195, 200
(7th Cir.1986). Although not set out completely in the Evans opinion, in Jarm
Enterprises, the Seventh Circuit set out the following factors to be considered:
whether:[a] there has been a substantial continuity of the same business
operations; [b] the new employer uses the same plant; [c] the same or
substantially the same work force is employed; [d] the same jobs exist
under the same working conditions; [e] the same supervisors are
employed; [f] the same machinery, equipment, and methods of
production are used; and [g] the same product is manufactured or the
same service [is] offered ...
N.L.R.B. v. Jarm Enterprises, Inc., 785 F.2d 195, 200 (7th Cir. 1986). Thus, it appears
the Eleventh Circuit adopted the Jarm Enterprises factors in this analysis. See, Brock
v. LaGrange Equip. Co., No. CV 86-0-170, 1987 WL 39105, at *2 (D. Neb. July 14,
1987) (Storm, J.) (citing Evans Services for the proposition that successor liability
involves the two-step inquiry stated therein, and citing Jarm Enterprises factors “to
be considered in determining successorship under the first prong of the inquiry.”); but
see, Knox v. Brundidge Shirt Corp., 942 F. Supp. 522, 527 (M.D. Ala. 1996), aff'd,
116 F.3d 1493 (11th Cir. 1997) (in ADA context citing Evans Services for the
proposition that “[i]n determining the ‘successorship’ status of Russell Corporation,
the court must consider the following factors: the similarity of members of the boards
of directors of the two corporations; whether both corporations used the same
19

equipment; whether they operated at the same location; whether they operated in the
same line of business and employed the same employees; whether advertisements
directly linked the two corporations; and whether the new corporation began its
business just after the old corporation closed its business.”).
(3)

Hatfield v. A+ Nursetemps, Inc., 651 F. App'x 901
(11th Cir. 2016)

Hatfield v. A+ Nursetemps, Inc., 651 F. App'x 901, 907 (11th Cir. 2016), is a
recent unpublished opinion9 based on facts which are comparable to those in the
instant case. In Hatfield, an individual named Michael Arthur owned a company
named Prime Staff Holdings, which he used to buy another company named Staff
America. He also owned the defendant in Hatfield, A+ Nursetemps, Inc. A+
Nursetemps and Staff America were nurse registry and staffing agencies that, like the
employment agencies at issue in the instant case, referred employees as shift workers
to customer companies. The plaintiffs in Hatfield sought to impose liability upon
Prime Staff Holdings and Staff America for FLSA violations committed by A+
Nursetemps, Inc. The other companies claimed that, because A+ Nursetemps did not
transfer assets to them, the judgment against A+ Nursetemps cannot be enforced
against them.

9

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” U.S.Ct. of App. 11th Cir. Rule 36-2.
20

The Eleventh Circuit held that a transfer of assets was not required and applied
the successor liability factors from the Seventh Circuit’s opinion in Teed v. Thomas
& Betts Power Sols., L.L.C., 711 F.3d 763 (7th Cir. 2013), which were:
(1) “the successor had notice of the pending” action; (2) “the
predecessor ... would have been able to provide the relief sought in the
[action] before the sale”; (3) “the predecessor could have provided the
relief after the sale” (its “inability to provide relief favors successor
liability”); (4) “the successor can provide the relief sought in the
[action]”; and (5) “there is continuity between the operations and work
force of the predecessor and the successor”.
Hatfield, 651 F. App'x at 907.10
Holding that successor liability was appropriate, the court wrote:
The facts at hand more than satisfy the federal standard for FLSA
successor liability. The first factor, notice of the action is clearly
satisfied by the connection, through Arthur, of the three nurse-staffing
entities. After this action was filed in June 2011 against his
wholly-owned company A+ Nursetemps, Arthur formed Prime Staff
Holdings that September, which, he testified, was for the sole purpose
of purchasing Staff America and continuing his nurse-registry and
healthcare-staffing business. The following month, Prime Staff Holdings
completed its purchase of Staff America through a stock-purchase
agreement for ten dollars and a two-and-a-half percent interest for the
preceding owner. Arthur was listed as the registered agent for Prime
Staff Holdings and Staff America, as well as the managing member,
president, and sole principal of Prime Staff Holdings, which was a
director of Staff America. Obviously, the court did not clearly err in
finding Prime Staff Holdings and Staff America were apprised of the

10

Hatfield does not mention Evans Services, although it does discuss the Supreme
Court’s decision in Golden State Bottling and the Eleventh Circuit’s opinion in In re Nat'l
Airlines.
21

pending action against A+ Nursetemps.
For the second and third factors, it appears from the record that
A+ Nursetemps would not have had the resources to satisfy the
judgment before or after the transition. Those factors, as the district
court concluded, are not determinative. . . . As explained in Teed, the
predecessor's being unable to provide relief prior to the transition
arguably weighs against applying successor liability because of the
windfall the plaintiffs would receive; however, weighing against that
consideration is the windfall the employer would enjoy when it avoids
judgment by transitioning to a new company that has not expressly
assumed its predecessor's liabilities. Id. at 765, 768. Regarding the third
factor, the predecessor's inability to provide relief after the transition
weighs in favor of successor liability. Id. at 766. Therefore, that the
nurses could not have received the judgment from A+ Nursetemps either
before or after the transition generally weighs in favor of applying
successor liability to appellants.
The fourth factor—whether the successors can provide the relief
sought by plaintiffs—is also satisfied. See id. at 766. The court did not
clearly err in finding the companies have continued to be successful in
the nurse-registry business and that, through a payment plan, they can
provide the sought-after relief. Finally, and most unfavorable to
appellants, the satisfaction of the substantial-continuity factor weighs
overwhelmingly in favor of imposing successor liability. A+
Nursetemps never filed for bankruptcy, as Arthur did personally, but it
did wind down its business operations while this action was pending in
district court. At the bench trial, Arthur testified that A+ Nursetemps
ceased business as of 3 May 2013. Just over two weeks later, the
judgment in the DOL action was rendered against A+ Nursetemps; about
a month after the DOL judgment, the judgment in this action was issued.
Moreover, as stated supra, Arthur testified, and the district court found,
that he created Prime Staff Holdings and Staff America to continue his
nurse-staffing business; in addition, and more important, the court found
he did so to avoid judgment in this action.
Furthermore, the companies also occupied the same office space
22

for at least some time. Although A+ Nursetemps’[s] business address
was listed as 2008 Highway 44, with Prime Staff Holdings and Staff
America's as 2020 Highway 44, Arthur testified that Staff America took
over 2008 Highway 44 from A+ Nursetemps shortly after it ceased
operations. Arthur sent himself a letter dated 3 May 2013, the day A+
Nursetemps ceased operating and shortly before the judgments were
entered against A+ Nursetemps in the DOL, and this, action, requesting
that A+ Nursetemps be allowed to “store its furniture and equipment
assets in the front office until a Receiver makes arrangements to pick it
up”. Moreover, on 26 April 2013, Staff America signed a Sublease
Agreement with A+ Nursetemps for three-quarters of its 2008 Highway
44 location.
Additionally, Staff America performs the same services—as a
nurse registry and medical-staffing agency—for many of the same
clients as did A+ Nursetemps. As the district court found, Staff America
enters into contracts with healthcare providers, as A+ Nursetemps did,
to supply them with nurses and other healthcare workers in its registry.
Most crucial to the district court’s findings regarding continuity,
Staff America employed many of the same persons as did A+
Nursetemps. Of the 169 nurses employed at A+ Nursetemps, 111 were
subsequently employed at Staff America between January 2013 and
April 2014. In other words, approximately 66 percent of the nurses who
worked for A+ Nursetemps began working for Staff America during that
time. As the district court found, those employees constituted “the heart
and soul asset or goodwill of the business itself”, a staffing agency.
Glausier, 2015 WL 2020332, at *4. And, as stated supra, Arthur owned
and managed all three entities. Obviously, an extremely large part of the
value of the company, a registry of healthcare workers, was its
employees; it would be a mere shell without them.
Id. at 907–09.

23

(4)

Survey of District Court Opinions

District Courts in the Eleventh Circuit agree on no one particular approach.
See, e.g., Noel, 2016 WL 1321504, at *3 (“[c]ourts may consider a myriad of factors”)
(citing Rojas v. TK Commcn's, Inc., 87 F.3d 745, 750 (5th Cir. 1996) and Evans
Servs., 810 F.2d at 1092–93); Rosario v. Labor Ready Se., Inc., No. 14-21496-CIV,
2015 WL 12086100, at *6 (S.D. Fla. Aug. 31, 2015) (Lenard, J.) (“[T]he Court must
first consider whether the successor employer had prior notice of the claim against
the predecessor . . . whether the predecessor is able to provide the relief requested .
. . whether there has been sufficient continuity in the business operations of the
predecessor and the successor to justify the imposition of liability[, and] [e]quitable
principles.”); Boateng v. Ret. Corp. of Am. Partners, L.P., No. 1:12-CV-01959-JOF,
2013 WL 12061901, at *4 (N.D. Ga. Mar. 5, 2013) (Forester, J.) (“‘Such factors as
the extent to which the successor corporation essentially continues the operations of
the former corporation and whether the new corporation had notice of the former
corporation's practices and policies are also part of this inquiry.’”) (quoting In re
National Airlines, Inc., 700 F.2d at 698); Waker v. Republic Steel Corp., No. CA
71-P-0179-S, 1987 WL 109068, at *2 (N.D. Ala. Nov. 10, 1987) (Pointer, J.) (citing
no factors but noting that “the Eleventh Circuit emphasized in the National Airlines
case, [that] this involves a fact-specific balancing of interests—and, indeed, an
24

employer may be a successor for some purposes but not for others.”).
c.

Pleading Federal Common Law Successor Liability

It is clear is that “the test for successor liability is fact specific and must be
conducted ‘in light of the facts of each case and the particular legal obligation which
is at issue.’” In re Nat'l Airlines, 700 F.2d at 698 (quoting Howard Johnson, 417 U.S.
at 264, n. 9). The EEOC argues that the issue of successor liability is inappropriate
to consider at this stage of the proceedings, citing Meier v. Provima, Inc., No.
8:06CV336 T24TBM, 2006 WL 3876371, at *2 (M.D. Fla. May 11, 2006) (Bucklew,
J.). In Meier, Judge Bucklew held that “[w]hether successor liability can be imposed
is a fact specific inquiry that should not be resolved on a motion to dismiss.”11 Of
course, Meier dealt with successor liability under Florida law, not federal common
law, as in the instant case. Further, Meier was decided before the Supreme Court’s

11

The EEOC implies that Kuhns Bros. v. Fushi Int'l, Inc., No. 3:06CV1917 PCD, 2007
WL 2071622, at *5 (D. Conn. July 16, 2007) (Dorsey, J.) contains a similar conclusion. (Doc. 25
at 7-8) (“As the holding in Kuhn[s Bros.] indicates,, the appropriate time to determine whether
[the] Defendant is a successor in interest is after discovery.”). However, in Kuhns Bros. the
Defendant “argue[d] that [the] Plaintiffs inadequately pled successor liability and therefore lack
standing to pursue a claim.” Kuhns Bros., 2007 WL 2071622, at *4. Citing the Supreme Court’s
opinion in Pennell v. San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed. 1 (1988), the district
court then noted that “[w]hen standing is challenged on the basis of the pleadings, we ‘accept as
true all material allegations of the complaint, and ... construe the complaint in favor of the
complaining party.” Kuhns Bros., 2007 WL 2071622, at *4 (internal quotations omitted). Under
that standard, the district court accepted as true “Plaintiffs' allegation that Defendant ‘was
formerly known as Dalian Fushi Bimetallic Manufacturing Company Ltd..’” Id. at *5.
Furthermore, Kuhns Bros. is distinguishable because the court’s holding was based on a finding
that successor liability was adequately pled under Connecticut law, not federal common law.
25

decisions in Twombly and Iqbal, which require that a Complaint state enough facts
to state a plausible claim for successor liability.12
Although the Court agrees with the EEOC that successorship does not have to
be conclusively determined at this stage of the litigation, that does not absolve the
agency from pleading facts which make its existence plausible. Other courts have
dealt with this issue at the motion to dismiss stage. See, e.g., Thompson v. Real Estate
Mortg. Network, 748 F.3d 142, 153 (3d Cir. 2014) (“[T]hese allegations are enough
to surmount a motion to dismiss under the federal standard.”); Washington v.
Patterson-UTI Energy, Inc., No. 5:16-CV-130-RP, 2016 WL 3081060, at *4 (W.D.
Tex. May 31, 2016) (Pitman J.) (“Because Plaintiffs do not allege that Patterson-UTI
has acquired assets from Torqued-Up, and provide no explanation as to how
Patterson-UTI can otherwise be considered a successor to Torqued-Up, they have
failed to sufficiently allege that Patterson-UTI can be held liable under a theory of
successor liability.”); Valdez v. Celerity Logistics, Inc., 999 F. Supp. 2d 936, 944
(N.D. Tex. 2014) (Fitzwater, J.) (“[The] plaintiffs’ amended complaint alleges the
possibility of successor liability, but it fails to show that plaintiffs are entitled to relief

12

Under the pre-Twombly/Iqbal standard in place at the time, Judge Bucklew also
determined that the following language was sufficient to provide notice under Rule 8:
“Defendant Mirabilis, Inc. (“Mirabilis”) became the successor in interest through merger or
acquisition to Provima as the sponsor and fiduciary of the Plan.” Meier, 2006 WL 3876371, at
*1.
26

on their successor liability claim.”); Romita v. Anchor Tank Lines, LLC, No. 11 CIV.
9641 DAB, 2014 WL 1092867, at *6 (S.D.N.Y. Mar. 17, 2014) (Batts, J.) (“[T]he
Court finds that Plaintiffs plausibly allege Successors’ liability for Predecessors'
delinquent pension fund contributions.”).
The Court notes that the Complaint in the instant case contains very few facts
which are relevant to this inquiry. In particular, there are no facts suggesting
“substantial” (or even any) continuity in business operations from East Coast to LSA.
The Complaint contains no allegations that there was any sale of East Coast, or any
of its assets, to LSA. Further, East Coast had been defunct nearly an entire year (since
November of 2013) before LSA was formed in October of 2014. Also, there is no
allegation that LSA employs substantially the same work force and/or supervisors as
East Coast.13 The Complaint does not allege that LSA operates at the same location
as the predecessor.14 There is no allegation as to whether East Coast could have
provided relief before or after any alleged sale or transfer,15 and there is no allegation
13

The Court is aware that the business of both companies was temporary staffing.
Obviously the Court here is referring to persons actually employed by East Coast and/or LSA to
work in the internal operations of each company.
14

The Complaint does allege that each share the same “principal office.” However, the
court reads this allegation to mean that they share the same principal corporate office location,
not the same business location.
15

The EEOC argues that “East Coast cannot provide relief because it no longer exists.”
(Doc. 25 at 7). While that statement seems to make sense on one level, the EEOC provides no
authority for why a corporation, merely because it is no longer “exists” cannot satisfy a claim
27

as to whether LSA could provide any relief now.16
What the Complaint does allege is that East Coast and LSA are both temporary
staffing agencies. It also alleges that the two entities share the same managing
officers, principal office address, and company email accounts. However, these facts
are not enough to demonstrate continuity when one considers the break in time
between when East Coast ceased operations and LSA began.17 Although the EEOC
also alleges that “[LSA] was formed to assume the business operations previously
performed by East Coast” (doc. 1 at 2, ¶5; doc. 25 at 7), and that LSA was “formerly
known as” East Coast (doc. 1 at 1), such statements are mere “labels and conclusions”
and “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at
678.18
with assets it owned.
16

There is no allegation that LSA had notice of the claims against East Coast prior to any
transfer. However, the Court may draw reasonable inferences from the facts which are stated.
Iqbal, 556 U.S. at 678. In this case, it is reasonable to infer notice since the Complaint alleges
that the two companies shared managing officers. Still, contrary to the EEOC’s argument in its
brief, LSA had no duty to remedy the EEOC’s pleading errors by affirmatively alleging it did not
have notice. (See doc. 25 at 9).
17

LSA argues that Dybala v. Landau & Heyman, Inc., No. 94 C 7719, 1997 WL 162846
(N.D. Ill. Mar. 27, 1997) held that there was no successor liability even the predecessor and
successor companies shared the same shareholders, directors, officers, and employees.
Importantly, the opinion in Dybala did not address continuity. It addressed whether the successor
“had actual notice of [the] EEOC charge and claim at the time of the asset purchase.” Dybala,
1997 WL 162846, at *3.
18

The EEOC contends that it has actually provided more detail than is necessary at this
stage. It first cites Centimark Corp. v. A to Z Coatings & Sons, Inc., 288 F. App'x 610, 616 (11th
28

Under the circumstances, the Court determines that the EEOC has failed to
plausibly allege that LSA is the successor to East Coast. For that reason, the motion
to dismiss is due to be granted.
The EEOC has moved for leave to amend to correct the deficiencies noted
herein. (Doc. 25 at 15). In light of the number of factors which may be considered by
the Court, and in keeping with the notion that “leave to amend should be freely given
when justice so requires,” FED. R. CIV. P. 15(a)(2), the Court will allow the EEOC an

Cir. 2008) where the Eleventh Circuit panel held:
[T]o the extent that defendants claim Centimark failed to adequately plead
successor liability, we reject that argument as well. Centimark's amended
complaint gave defendants sufficient notice of the successor liability claim by
alleging, inter alia, that “A to Z [Florida] is the alter ego of A to Z [Georgia] as it
[is] a mere continuation of the business of the latter,” and that A to Z Florida and
A to Z Georgia have common shareholders.
Centimark Corp., 288 F. App'x at 616. First, the above quoted language was deemed to be
sufficient to plead a case for successor liability under Florida law, not federal common law as in
the instant case. Also, there is no indication in Centimark that additional facts were pled
demonstrating a break of nearly a year between the formation of the new entity and the cessation
of the old, as there are in the instant case. Centimark was also an appeal from a bench trial and
verdict, not an appeal from a ruling on a motion to dismiss pursuant to Rule 12(b)(6). Too,
although Centimark was decided after Twombly, it was decided before Iqbal and there is no
indication that standards and guidance from either case were considered. The Court is not
persuaded by the Centimark decision.
The EEOC also cites United Credit Recovery, LLC v. Bexten, No. 6:11-CV-1714-ORL31, 2012 WL 3854536, at *1 (M.D. Fla. Sept. 5, 2012) (Presnell, J.) and De Mana Internet Sols.,
Inc. v. Internet Billing Co., LLC., No. 06-61515, 2007 WL 1455973, at *1 (S.D. Fla. May 16,
2007) (Cooke, J.). Like Centimark, neither of these cases arose in the context of and
employment/labor dispute and both were based on state, as opposed to federal common law
successor liability law. Further, like Centimark, there is no indication in either case that there was
a break between entities like the one in the instant case.
29

opportunity to review the applicable case law and amend to state any facts which may
be appropriate to this inquiry. See, Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001) (“Generally, ‘[w]here a more carefully drafted complaint might state a claim,
a plaintiff must be given at least one chance to amend the complaint before the district
court dismisses the action with prejudice.’”) (quoting Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir.1991)).
2.

Exhaustion of Administrative Remedies

Even if the Complaint had plausibly alleged that LSA was the successor to East
Coast, it would still be due to be dismissed since it is undisputed that LSA was not
named in the original EEOC charge, or in any amendment thereto. The Eleventh
Circuit has noted:
A person seeking to file a lawsuit under Title VII must first file
a charge with the EEOC alleging a Title VII violation, and then obtain
authorization from the EEOC or, in the case of a political subdivision of
a state government, the Attorney General. See Virgo v. Riviera Beach
Assoc., Ltd., 30 F.3d 1350, 1358 (11th Cir.1994); 42 U.S.C. §
2000e–5(f)(1). Generally, a party not named in the EEOC charge may
not be sued in a later civil action. Virgo, 30 F.3d at 1358. That naming
precondition “serves to notify the charged party of the allegation and
allows the party an opportunity to participate in conciliation and
voluntarily comply with the requirements of Title VII.” Id.
That naming precondition, however, must be liberally construed.
Id. Sometimes a party not named in the EEOC charge may still be sued
in a later civil action but only if doing so fulfills the purposes of the
Title VII. Id. at 1358–59. In analyzing whether the purposes of Title VII
30

are met, this Court considers several factors, including:
(1) the similarity of interest between the named party and
the unnamed party; (2) whether the plaintiff could have
ascertained the identity of the unnamed party at the time
the EEOC charge was filed; (3) whether the unnamed
parties received adequate notice of the charges; (4) whether
the unnamed parties had an adequate opportunity to
participate in the reconciliation [sic] process; and (5)
whether the unnamed party actually was prejudiced by its
exclusion from the EEOC proceedings.
Id. at 1359. That is not meant to be a “rigid test” and “[o]ther factors
may be relevant depending on the specific facts of the case.” Id.
One additional factor sometimes considered by this Court is
whether an investigation of the unnamed party “could have reasonably
grown out of [the EEOC] charge.” Hamm v. Members of Bd. of Regents,
708 F.2d 647, 650 (11th Cir.1983); see also Terrell v. U.S. Pipe &
Foundry Co., 644 F.2d 1112, 1123 (5th Cir.1981), vacated on other
grounds sub nom. Int'l Ass'n of Machinists & Aerospace Workers,
AFL–CIO v. Terrell, 456 U.S. 955, 102 S.Ct. 2028, 72 L.Ed.2d 479
(1982). That factor weighs in favor of inclusion of an unnamed party if
the party's identity or participation in the alleged discrimination is or is
likely to be uncovered during the EEOC's reasonable investigation
growing out of the charge. See Terrell, 644 F.2d at 1123.
Lewis v. Asplundh Tree Expert Co., 402 F. App'x 454, 456–57 (11th Cir. 2010)
(footnotes omitted).
As noted, it is undisputed that LSA was not named in the EEOC charge.
Regardless, the EEOC argues:
Here, the Court should deny Defendant’s Motion to Dismiss because
Labor Solutions had notice of the EEOC charge, investigation, final
31

determinations and conciliation. Specifically, the same person, Paris
Wiley, owns and operates both Labor Solutions and East Coast, the
entity named in the EEOC Charge. As stated above, both entities share
a principal office address and business email account.
(Doc. 25 at 15). The Complaint does not allege any of these facts, and “[a] complaint
may not be amended by briefs in opposition to a motion to dismiss.” Gibbons v.
McBride, 124 F. Supp. 3d 1342, 1381 (S.D. Ga. 2015); see also, Huls v. Llabona, 437
Fed.Appx. 830, 832 n. 5 (11th Cir.2011) (holding that an argument raised for the first
time in response to defendant's motion to dismiss, instead of in an amended
complaint, was not properly raised before the district court and would not be
considered on appeal); McKally v. Perez, 87 F.Supp.3d 1310, 1317–18, No.
14–22630–CIV, 2015 WL 758283, at *6 (S.D.Fla. Feb. 6, 2015); Fleming v. Dowdell,
434 F.Supp.2d 1138, 1148 n. 9 (M.D.Ala.2005) (finding dismissal of the Fourth
Amendment claim was proper because “[a] complaint may not be amended by briefs
in opposition to a motion to dismiss or motion for summary judgment”) (citations
omitted). Further, the Complaint does not allege any facts which establish that the
“purposes” of Title VII are met by allowing LSA to be sued in this case.
Regardless, the Court deems that many of the facts which are relevant to the
successorship inquiry may also be relevant to this inquiry. Since the Court is allowing
amendment to address the former, it will also allow amendment to address the latter.

32

IV.

CONCLUSION
For the reasons stated herein, the motion to dismiss is hereby GRANTED.

However, the EEOC may filed an Amended Complaint within 14 days which cures
the deficiencies noted herein. Should no amended complaint be filed by that date, this
case will be dismissed. See, FED. R. CIV. P. 41(b).
DONE and ORDERED this 17th day of March, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

33