Hale v. MT Pools of SWFL, Inc.
Filing
23
ORDER re 21 Response to motion filed by Mary Hale. The Plaintiff, Mary Hale's Response 21 to the Defendant, MT Pools of SWFL, Inc.'s Motion to Dismiss Counts III and IV of the Plaintiff's Complaint construed as a Motion to Amend is GRANTED. Plaintiff has up to and including October 28, 2013, to file her Amended Complaint without Counts III and IV. Signed by Judge Sheri Polster Chappell on 10/17/2013. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARY HALE, an individual
Plaintiff,
v.
Case No: 2:13-cv-434-FtM-38DNF
MT POOLS OF SWFL, INC.,
Defendant.
/
ORDER
This matter comes before the Court on the Plaintiff, Mary Hale's Response (Doc.
#21) to the Defendant, MT Pools of SWFL, Inc.'s Motion to Dismiss Counts III and IV of
the Plaintiff's Complaint (Doc. # 16) filed on October 13, 2013.
On September 19, 2013, the Defendant filed a Motion to Dismiss Counts III and
IV of the Complaint with prejudice (Doc. # 16). Counts III and IV alleged violations
under the Family Medical Leave ACT (FMLA). The Defendant states that Counts III and
IV fail to state a claim because the Plaintiff does not allege that the Defendant employed
more than fifty (50) employees during the relevant time period or that the Defendant
was an entity with more than fifty (50) eligible employees who worked and lived within a
seventy-five (75) mile radius. The FMLA is only applicable to employers with fifty (50) or
more employees and is only applicable to eligible employees who work for an entity with
fifty (50) or more employees within a seventy-five (75) mile radius. See 29 U.S.C. §
2611(2)(B)(ii); 29 U.S.C. § 2611(4). Because Plaintiff Hale failed to establish that the
Defendant met the criteria to be covered by the FLMA, the Defendant moves to dismiss
Counts III and IV for failure to state a claim.
In her Response, Hale agrees with the Defendant that Counts III and IV do not-at this time-- state a claim pursuant to the FMLA and moves the Court to voluntarily
dismiss the Counts without prejudice under Fed. R. Civ P. 41(a)(2). However, in the
Eleventh Circuit, “precedent dictates that Rule 41 allows a plaintiff to dismiss all of [her]
claims against a particular defendant; its text does not permit plaintiffs to pick and
choose, dismissing only particular claims within an action.” Campbell v. Altec Indus.,
Inc., 605 F.3d 839, 841 n.1 (11th Cir. 2010). As Plaintiff is only seeking to dismiss
Counts III and IV, the voluntary dismissal will be denied.
Instead, the Court will
Construe the Response as an unopposed motion to amend and Plaintiff will be granted
leave to file an Amended Complaint without Counts III and IV.
Accordingly, it is now
ORDERED:
The Plaintiff, Mary Hale’s Response (Doc. #21) to the Defendant, MT Pools of
SWFL, Inc.'s Motion to Dismiss Counts III and IV of the Plaintiff's Complaint construed
as a Motion to Amend is GRANTED.
Plaintiff has up to and including October 28,
2013, to file her Amended Complaint without Counts III and IV.
DONE and ORDERED in Fort Myers, Florida this 17th day of October, 2013.
Copies: All Parties of Record
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