Graham v. Atlas Copco North America, LLC, et al,

Filing 27

ORDER ADOPTING IN PART 20 REPORT AND RECOMMENDATION: plaintiff's 17 motion to amend the complaint is denied as moot; plaintiff's 19 motion to conduct preliminary discovery is GRANTED; and the defendant's 9 motion to dismis s is DENIED as MOOT conditioned on the plaintiff's amending the complaint to name the proper defendants. The matter is referred to the Magistrate Judge to enter an amended scheduling order to accommodate the preliminary discovery. Signed by Judge Callie V. S. Granade on 9/19/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY GRAHAM
Plaintiff,
vs.
ATLAS COPCO/QUINCY
COMPRESSOR, LLC,
Defendants.

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Civil Action No. 13-0249-CG-B

ORDER
This matter is before the Court on the report and recommendation of
the Magistrate Judge (Doc. 20), the defendants’ Atlas Copco North America,
LLC (“ACNA”) and Quincy Compressor, LLC (“Quincy Compressor”) objection
to the report and recommendation (Doc. 21), and the plaintiff Kimberly
Graham’s (“Graham”) response in opposition (Doc. 22). The Magistrate Judge
recommended that the defendants’ motion to dismiss (Doc. 9), the plaintiff’s
motion to amend the complaint (Doc. 17) and the plaintiff’s motion to conduct
preliminary discovery (Doc. 19), be denied as moot. Specifically, the
Magistrate Judge determined that because the plaintiff was entitled to
amend her complaint once as a matter of right and without leave of court
pursuant to Rule 15(a) of the Federal Rules Civil Procedure, the plaintiff’s
motion to amend the complaint was moot. 1 The Magistrate Judge reasoned

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Rule 15(a)(1)-(2) of the Federal Rules of Civil Procedure provides:

that the amended complaint superseded the original complaint mooting the
motion to dismiss and motion to conduct preliminary discovery.
After due and proper consideration of all portions of this file deemed
relevant to the issues raised, and a de novo determination of those portions of
the report and recommendation to which objection is made, the report and
recommendation of the Magistrate Judge made under 28 U.S.C. §
636(b)(1)(B) is ADOPTED IN PART and REJECTED IN PART as the
opinion of this Court, subject to the following additional discussion.
DISCUSSION
The defendants object to the report and recommendation arguing that
the superseding amended complaint did not cure the issues addressed in
their motion to dismiss. Specifically, the defendants argue that the amended
complaint fails to properly name any existing entity as a defendant or
establish which defendant is responsible for each allegation in the suit. Rule
12(b)(6) of the Federal Rules of Civil Procedure allows a court to grant a

(1) A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) 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), (e), or (f),
whichever is earlier.
(2) In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.
See Fed.R.Civ.P. 15(a). The plaintiff filed her motion to amend the complaint with
leave of court exactly 21 days after the filing of the defendant’s 12(b) motion to
dismiss. (Doc. 20 at 2). The court also notes that the defendants have no objection to
the plaintiff amending the complaint to clarify the proper parties. (Doc. 21 ¶ 15).

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motion to dismiss when a complaint fails to state a claim upon which relief
can be granted. See Fed.R.Civ.P. 12(b)(6). To withstand a motion to dismiss, a
complaint must “give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The factual
content of the pleading must allow the court to draw a “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).
The original complaint named “Atlas Copco/Quincy Compressor, LLC”
as the defendant.2 (Doc. 1). In response to the defendants’ motion to dismiss,
the plaintiff sought to amend the complaint to add “Atlas Copco North
America, LLC d/b/a Quincy Compressor, LLC” as the defendant. (Doc. 17).
However, this entity does not exist. ACNA and Quincy Compressor are
actually two separate entities. Quincy Compressor admitted to being a duly
recognized, legal entity that employed the plaintiff, but there seems to be
confusion regarding what “Atlas Copco” entity is the proper party to be sued.
(Doc. 21-1). The plaintiff received numerous documents referencing “Atlas
Although the plaintiff makes numerous references in the original complaint to a
single defendant, she issued summonses and attempted to serve the two separate
entities of Atlas Copco and Quincy Compressor. Atlas Copco is not a recognized
company. It appears that the plaintiff attempted to serve Atlas Copco by serving CT
Corporation, the registered agent for service of process for ACNA. The plaintiff first
served ACNA and Quincy Compressor with only the summons, but she later cured
this deficiency by serving the registered agent for ACNA and Quincy Compressor
with both the summons and the complaint. (Docs. 4, 6). However, the defendants
appear to contend that service against ACNA is still not perfected because they have
not been properly named in the complaint.
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Copco” during her employment.3 At least eight different entities whose names
incorporate “Atlas Copco” are registered with the Alabama Secretary of State,
but “Atlas Copco North America, LLC” is not one of them. (Doc. 18-1 at 7-14).
Atlas Copco’s website states that it acquired Quincy Compressor, but ACNA
denies that any parent, subsidiary or affiliate of Quincy Compressor ever
employed the plaintiff.4
In order to determine the proper defendant to name in the amended
complaint, the plaintiff requests that she be allowed to conduct preliminary
discovery on the issues raised in the motion to dismiss. Under these
circumstances, the court finds that such pre-discovery is warranted. See
Fed.R.Civ.P. 26(d). This preliminary discovery will neither delay proceedings
in the matter as an answer has not yet been filed nor will it prejudice the

The plaintiff’s Offer of Employment, Screening Questions for Salaried Recruitment
and Atlas Copco Group Travel policy support the inference that some “Atlas Copco”
entity is a proper party to the suit. (Doc. 18-1 at 16-17, 19). Although the plaintiff’s
Offer of Employment was on Quincy Compressor letterhead, the first sentence reads,
“Atlas Copco is pleased to extend to you the opportunity to join Quincy Compressor
as Environmental, Health and Safety Manger…” (Doc. 18-1 at 16-17, 19-24, 26-29).
The letter goes on to say that the plaintiff “will be eligible to participate in the Atlas
Copco benefits package” and most notably, “Welcome to Atlas Copco!” Id. The
plaintiff sent her Screening Questions for Salaried Recruitment to persons with an
Atlas Copco email address and later interviewed with these same people. (Doc. 18 at
19-24). Lastly, the Atlas Copco Group Travel Policy that the Plaintiff was required
to follow referenced the name “Atlas Copco” over a dozen times. (Doc. 18-1 at 26-29).
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The plaintiff contends that ACNA and Quincy were her joint employers during the
relevant time period. An article on Atlas Copco’s website states that it has “agreed to
acquire Quincy Compressor” and goes on to talk about how Atlas Copco looks
“forward to working with Quincy Compressor and its strong distributor network.”
(Doc. 18-1 at 4). Atlas Copco’s website also states that “Atlas Copco AB and its
subsidiaries are sometimes referred to the Atlas Copco Group, the Group or Atlas
Copco.” (Doc. 18-1 at 12).
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defendants. Thus, the plaintiff’s motion to conduct preliminary discovery is
due to be granted. Assuming the plaintiff amends the complaint to name the
proper defendants once discovery on the matter is completed, the issues
raised in the defendants’ motion to dismiss will be cured and it will be due to
be denied as moot.
CONCLUSION
For the reasons stated above, the Magistrate Judge’s report and
recommendation (Doc. 21) is ADOPTED IN PART to the extent that it finds
the plaintiff’s motion to amend the complaint (Doc. 17) denied as moot. The
court also finds the plaintiff’s motion to conduct preliminary discovery (Doc.
19) is due to be GRANTED and the defendant’s motion to dismiss (Doc. 9) be
DENIED as MOOT conditioned on the plaintiff’s amending the complaint to
name the proper defendants.
The matter is referred to the Magistrate Judge to enter an amended
scheduling order to accommodate the preliminary discovery.
DONE and ORDERED this 19th day of September, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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