Polk v. Sears Roebuck & Co et al
Order denying 10 MOTION to Transfer filed by Sears Roebuck & Co, granting 12 MOTION to Amend Complaint filed by Marcia T. Polk, denying 13 MOTION to Dismiss Defendants Request to Dismiss filed by Marcia T. Polk. The Amended C omplaint attached to the motion (doc. 12) is now Polk's operative pleading in this matter. Responses to the 8 Motion to Dismiss are due by 4/18/2012, Replies due by 4/25/2012. Signed by Chief Judge William H. Steele on 4/4/2012. Copy mailed to Plaintiff. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MARCIA T. POLK,
SEARS, ROEBUCK, AND CO., et al.,
CIVIL ACTION 11-0725-WS-B
This matter comes before the Court on defendants’ Motion to Transfer (doc. 10),
plaintiff’s “Motion to Dismiss Defendants Request … and Receive from Court Correct
Instructions” (doc. 13), and plaintiff’s “Motion to Amend Complaint without a Motion to Amend
Complaint” (doc. 12). All three motions are now ripe for disposition.
On December 22, 2011, plaintiff, Marcia T. Polk, proceeding pro se, filed a Complaint in
this District Court against named defendants Sears, Roebuck, and Co. and Sears Holdings
Corporation (collectively, “Sears”).1 The Complaint alleges that Polk “is a qualified individual
with disabilities” (including, without limitation, certain chemical sensitivities and type II
diabetes), but that Sears failed to provide her with reasonable accommodations she required in
order to perform her duties as a retail support associate. The Complaint further alleges that Sears
failed to “provide remedy for severe and malicious harassment and discrimination directed
towards Plaintiff, due to my disabilities, covered under Title VII” (doc. 1, at 2-3); that Sears
scheduled Polk to work at times that conflicted with her medical appointments and treatments;
and that Sears willfully and maliciously denied her the reasonable accommodations that would
In deference to Polk’s pro se status, the Court affords her pleadings a liberal
construction for purposes of the pending motions. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”).
have enabled her to perform the essential functions of her job. Polk contends that there is federal
jurisdiction over this action because her claim is for “Violation of ADA/Employment;” however,
she also purports to bring state-law claims for quantum meruit, intentional infliction of emotional
distress, breach of contract and negligence.
This is not the first time that Polk has sued Sears in this District Court. To the contrary,
in May 2011, Polk filed an Amended Complaint in Civil Action No. 10-0636-CG-M (hereinafter,
“Polk I”) to assert claims against Sears (again, under the names “Sears, Roebuck and Company”
and “Sears Holdings Corporation”) for “Violation of ADA/Employment.” (Civil No. 10-636,
doc. 18, at 7.) Much like her current complaint, Polk’s Amended Complaint filed in Polk I
alleged that Sears had failed to “provide remedy for severe and malicious harassment and
discrimination directed towards Plaintiff, due to my disabilities, covered under Title VII.” (Id. at
1.) Polk further alleged in her pleading in Polk I that Sears “disregard[ed] the recommended
accommodations” for her disability, that she was “mocked” by Sears management for her
disabilities and that, rather than accommodating her chemical sensitivity, Sears exacerbated it
when, for example, a manager placed an air freshener on her desk for months. (Id. at 2, 4, 5.)
On February 28, 2012, Judge Granade entered an order in Polk I, dismissing Polk’s
claims against Sears on the ground that her claims against those corporate defendants were
untimely. (See Civil No. 10-636, at doc. 53.) Polk did not appeal from this dismissal order,
which had the effect of terminating the Polk I litigation on the day it was entered.
Motion to Transfer.
Sears has filed a Motion to Transfer this action to the docket of Judge Granade, who
presided over and dismissed Polk I. Sears’ Motion is predicated on Local Rule 3.3(b). That
Rule states, in part, as follows: “Whenever an action or proceeding terminated by entry of a
notice or order of dismissal is refiled without a substantial change in issues or parties, it shall be
assigned or transferred to the district judge to whom the original action or proceeding was
assigned, unless otherwise ordered by the chief judge.” LR 3.3(b). Sears maintains that Polk’s
present lawsuit constitutes a “refiled action” within the meaning of Local Rule 3.3(b) and that
there has been no substantial change in issues or parties.
The Court disagrees. Local Rule 3.3(b) is designed to prevent a losing party in one
lawsuit from judge-shopping by refiling essentially the same lawsuit after the initial lawsuit has
been dismissed. But it is simply not the case here that “an action or proceeding terminated by
entry of a notice or order of dismissal [has been] refiled.” Polk filed the instant Complaint and
was granted IFP status herein before the dismissal of Polk I by Judge Granade on February 28,
2012. On its face, then, this matter does not fall within the parameters of a “refiled action,”
because plaintiff filed her Complaint in this case while Polk I was still pending, not after it had
been dismissed. The narrow Local Rule 3.3(b) does not apply in these circumstances.
Moreover, the Court does not perceive that the interests of judicial economy, efficiency or
comity favor transferring this action to the docket of Judge Granade.2 Accordingly, the Motion
to Transfer (doc. 10) is denied, and this action will remain assigned to the undersigned’s docket.
In response to Sears’ Motion to Transfer, Polk submitted a pair of motions of her own.
The first of these is a motion requesting instructions regarding her “financial hardship” and
service of process. This motion reflects substantial misunderstanding by Polk as to the present
state of this litigation.
Contemporaneously with her pro se Complaint, Polk filed a Motion to Proceed without
Prepayment of Fees (doc. 2). Magistrate Judge Bivins granted the IFP Motion by Order (doc. 3)
dated January 10, 2012. Pursuant to that ruling, Polk is proceeding in this litigation in forma
pauperis, as a result of which she was excused from paying the $350 filing fee that other
plaintiffs must remit to the Clerk of Court in order to pursue their claims. On February 24, 2012,
Judge Bivins ordered that the Clerk of Court attempt to serve process on defendants via certified
mail. (See doc. 4.) These efforts were successful, and defendants were served with process on
February 28, 2012 and March 2, 2012. (See docs. 6 & 7.) Notwithstanding these developments,
Polk devotes much of her Motion to complaining that the Clerk’s Office did not furnish her with
the necessary forms for filing summonses and requesting that she be “allowed to properly serve
summons with the complaint.” Such activities are unnecessary at this time. Defendants have
Had a Rule 42(a) motion to consolidate this action with Polk I been filed before
the latter’s dismissal, such consolidation of both cases on Judge Granade’s docket likely would
have been appropriate and efficient. However, no such motion was filed. This Court can apply
the principles of exhaustion and res judicata to Polk’s Amended Complaint and to the dismissal
order in Polk I just as easily as that order’s author could. Thus, it is not apparent that any
meaningful advantages in terms of efficiency or judicial economy would be realized by
transferring this action to Judge Granade more than a month after she dismissed the related
litigation as untimely.
already been served. What’s more, they have appeared and are defending in this action.
Accordingly, plaintiff’s Motion to Dismiss Defendants Request to Dismiss (doc. 13) is denied
because it proceeds from the incorrect premise that plaintiff needs additional time to serve
defendants, when in fact defendants have already been served and have appeared as defendants
As for plaintiff’s other motion, the curiously titled “Motion to Amend Complaint without
a Motion to Amend Complaint” (doc. 12), a fair reading of that motion, with due regard for
plaintiff’s pro se status, is that she seeks to amend her pleading as a matter of course. Polk has
an absolute right to amend her pleading at this time. After all, the Federal Rules of Civil
Procedure provide that “A party may amend its pleading once as a matter of course within … if
the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b) …, whichever is
earlier.” Rule 15(a)(1)(B), Fed.R.Civ.P. The court file reflects that defendants served and filed
their Rule 12(b) motion on March 20, 2012; therefore, the 21-day period for amendment as of
right does not expire until April 10, 2012. Polk filed her Motion to Amend on March 29, 2012.
In her Motion, plaintiff also requests that she be informed “what the Financial
Hardship covers” and “what services are covered by hardship.” (Doc. 13, at 1, 3.) By all
appearances, the “hardship” references pertain to her in forma pauperis (“IFP”) status. Quite
simply, that status does not confer upon her any “services.” Neither this Court nor the Clerk’s
Office can or will act as de facto attorney for Polk merely because she is an IFP litigant. See
GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998); Ford v.
Central Loan Admin., 2011 WL 4702912, *3 (S.D. Ala. Oct. 5, 2011) (“applicable precedents
forbid this Court from acting as Ford’s de facto counsel or rewriting otherwise deficient
pleadings on her behalf to steer her claims past a Rule 12(b)(6) challenge”). Rather, it is
plaintiff’s responsibility to identify and comply with the rules, and to litigate her claims. See
Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011); Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007) (explaining that “we are to give liberal construction to the pleadings of pro
se litigants,” but that “we nevertheless have required them to conform to procedural rules”)
(citation omitted); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (a pro se party “is
subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure,”
and may be sanctioned “for failure to comply with court orders”); Local Rule 83.9(b). As for
plaintiff’s vague accusation that the Clerk’s Office has not allowed her “to exercise rights given
to Plaintiffs who do not request” IFP status (doc. 13, at 2), Polk may be assured that this District
Court does not treat IFP litigants less favorably than other litigants, and does not withhold or
trammel the exercise of any rights by IFP litigants that are generally available to others. Any
perception to the contrary is factually baseless and categorically incorrect.
Accordingly, the “Motion to Amend Complaint without a Motion to Amend Complaint” (doc.
12) is granted, and the Amended Complaint appended to that Motion is now plaintiff’s operative
pleading in this action. (See doc. 12-1.) To avoid confusion, the Court will excuse plaintiff from
the obligation to refile the Amended Complaint as a freestanding pleading, and will accept it as
For all of the foregoing reasons, plaintiff’s “Motion to Dismiss Defendants Request to
Dismiss” (doc. 13) is denied, while her “Motion to Amend Complaint without a Motion to
Amend Complaint” (doc. 12) is granted. The Amended Complaint attached to her Motion to
Amend at document 12-1 is now Polk’s operative pleading in this matter. Sears’ Motion to
Transfer (doc. 10) is denied.
Still pending is Sears’ Motion to Dismiss (doc. 8), which is predicated on theories of res
judicata and failure to exhaust administrative remedies. Those theories for dismissal appear to
apply with equal force to the Amended Complaint as they did to the original Complaint;
therefore, plaintiff’s filing of an amended pleading has not rendered the Rule 12(b) Motion moot.
As such, plaintiff is ordered to file her response to the Motion to Dismiss, supported by
authorities as appropriate, on or before April 18, 2012.4 Defendants may file a reply on or
before April 25, 2012. If the Court determines that oral argument is necessary, the parties will
be notified and a hearing will be scheduled. Otherwise, the Motion will be taken under
submission after April 25, 2012.
DONE and ORDERED this 4th day of April, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The Court is particularly interested in hearing from plaintiff as to why she
contends that the causes of action she asserts in this case survive scrutiny under the doctrine of
res judicata, in light of the dismissal order entered in Polk I. See, e.g., In re Piper Aircraft Corp.,
244 F.3d 1289, 1296 (11th Cir. 2001) (“Under res judicata, also known as claim preclusion, a
final judgment on the merits bars the parties to a prior action from re-litigating a cause of action
that was or could have been raised in that action.”) (emphasis added).
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