Manning v. Lifeguard Ambulance Service of Alabama, LLC
Order granting 6 MOTION to Dismiss for Failure to State Claim filed by Lifeguard Ambulance Service of Alabama, LLC. The complaint is dismissed. Plaintiff's request for leave to file an amended complaint is granted. Amended complaint is due by 7/19/2013. Signed by Chief Judge William H. Steele on 7/5/2013. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KATHERINE L. MANNING,
) CIVIL ACTION 13-0078-WS-C
LIFEGUARD AMBULANCE SERVICE )
OF ALABAMA, L.L.C.,
This matter is before the Court on the defendant’s motion to dismiss. (Doc.
6). The parties have filed briefs in support of their respective positions, (Docs. 6,
16, 17), and the motion is ripe for resolution.
The complaint contains two causes of action, both based on the plaintiff’s
termination on the basis of her sexual orientation. Count One is asserted under
Title VII and Count Three1 under Section 1981.
As the defendant points out, neither Title VII nor Section 1981 provides
legal protection against discrimination based on sexual orientation. The plaintiff
concedes that the “[d]efendant’s motion appears to be well-taken ….” (Doc. 16 at
1). Accordingly, the motion to dismiss is due to be granted.
The plaintiff requests an opportunity to file an amended complaint
“asserting viable causes of action, or otherwise dismissing this matter.” (Doc. 16
at 1). The defendant objects, on the grounds that: (1) the plaintiff should have
pled a proper claim initially; and (2) amendment would be futile. (Doc. 17 at 1-3).
Because no Rule 16(b) scheduling order has been entered, the plaintiff need
satisfy only Rule 15(a), which provides that “[t]he court should freely give leave
The complaint skips Count Two.
when justice so requires.” Leave to amend should be given under this rule “[i]n
the absence of any apparent or declared reason – such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.” Garfield v. NDC
Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (internal quotes omitted). The
burden is on the defendant to establish one or more of these exceptions to the bias
As to delay, “the mere passage of time is not enough to deny a motion to
amend ….” Burns v. Winnebago Industries, Inc., 492 Fed. Appx. 44, 46 (11th Cir.
2012) (citing Loggerhead Turtle v. County Council of Volusia County, 148 F.3d
1231, 1256-57 (11th Cir. 1998)); accord Hester v. International Union of
Operating Engineers, 941 F.2d 1574, 1578-79 (11th Cir. 1991). In Loggerhead
Turtle, the plaintiffs moved to amend on October 27, based on an exhibit they had
attached to a motion for preliminary injunction in late July. 148 F.3d at 1235,
1256. The Eleventh Circuit held that the trial court’s decision to deny the
plaintiffs leave to amend based on undue delay was an abuse of discretion. Id. at
1236, 1257. The Court concluded that, where the plaintiffs sought leave to amend
within the time provided by the Rule 16(b) scheduling order, “[a]t most, their
failure to request leave to file an amended complaint in late July instead of
October supports a finding of ‘delay,’ not ‘undue delay’ or ‘dilatory’ action.” Id.
at 1256-57. The Eleventh Circuit cases upholding denials of leave to amend based
Spanish Broadcasting System, Inc. v. Clear Channel Communications, Inc., 376
F.3d 1065, 1077 (11th Cir. 2004) (“The Supreme Court has emphasized that leave to
amend must be granted absent a specific, significant reason for denial ....”); accord Best
Canvas Products & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 623 (11th Cir.
on undue delay involve delays measured in years and/or extending beyond key
The plaintiff here sought leave to amend promptly after the defendant’s
motion to dismiss pointed out the need, and a full month before even a Rule 26
report was required. (Doc. 13). In light of these circumstances and the cases cited
above (none of which – nor any other – have been cited by the defendant), the
plaintiff cannot seriously be accused of engaging in undue delay.
As to futility, the defendant simply posits that the plaintiff belongs to no
protected class. (Doc. 2). This is a remarkable proposition, given that each human
being possesses a gender, a race and an ethnicity, all of which are protected classes
under Title VII, with the latter two also protected classes under Section 1981. As
the defendant correctly notes, (Doc. 17 at 2), amendment is futile if “the complaint
as amended is still subject to dismissal.” Hall v. United Insurance Co., 367 F.3d
1255, 1262-63 (11th Cir. 2004) (internal quotes omitted). But whether the plaintiff
can, consistent with Rule 11, assert a claim not subject to dismissal is a question
the resolution of which must await the propounding of an amended complaint.
Contrary to the defendant’s belief, the plaintiff was not required to submit a
See, e.g., Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (seven weeks
after close of discovery, after dispositive motions filed); Florida Evergreen Foliage v.
E.I. DuPont de Nemours & Co., 470 F.3d 1036, 1040-41 (11th Cir. 2006) (“years” after
complaint filed, and after several dispositive motions and certified questions were
resolved, and during interlocutory appeal); Andrx Pharmaceuticals, Inc. v. Elan Corp.,
421 F.3d 1227, 1237 (11th Cir. 2005) (over a year after complaint filed); Carruthers v.
BSA Advertising, Inc., 357 F.3d 1213, 1214, 1218 (11th Cir. 2004) (over a year and a half
after complaint filed, and six months after the deadline for amendments); Laurie v.
Alabama Court of Criminal Appeals, 256 F.3d 1266, 1275 (11th Cir. 2001) (well over a
year after complaint filed, and long after the deadline for amendments); Brewer-Giorgio
v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000) (over a year after
complaint filed, and eight months after the deadline for amendments); Jennings v. BIC
Corp., 181 F.3d 1250, 1258 (11th Cir. 1999) (almost three years after complaint filed, and
five months after the deadline for amendments); Burger King Corp. v. Weaver, 169 F.3d
1310, 1319 (11th Cir. 1999) (over three years after complaint filed); Campbell v. Emory
Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (over five years after complaint filed, and
after discovery ended and dispositive motions filed); Hester, 941 F.2d at 1578-79 (over
two years after complaint filed).
proposed amended complaint as a condition precedent to being given time to file
For the reasons set forth above, the motion to dismiss is granted. The
complaint is dismissed. The plaintiff’s request for leave to file an amended
complaint, construed as a motion for such relief, is granted. The plaintiff is
ordered to file her amended complaint, if any, on or before July 19, 2013, failing
which the Court will enter final judgment in favor of the defendant.
DONE and ORDERED this 5th day of July, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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