Nielsen v. Pinellas County, Office of Human Rights et al

Filing 28

ORDER granting 18 Motion to dismiss with leave to file an amended complaint which cures all defects of the current Amended Complaint, within twenty days of this Order; denying 23 Motion for leave to file. Signed by Judge Elizabeth A. Kovachevich on 8/17/2009. (CB)

UNITED
MIDDLE FREDERICK V. NIELSEN,

STATES
TAMPA

DISTRICT
OF
DIVISION

COURT

DISTRICT

FLORIDA

Plaintiff, v.
PINELLAS COUNTY, OFFICE

CASE NO.

8:08-CV-711-T-17TBM

OF HUMAN

RIGHTS,

Defendant.

ORDER

This

cause

is

before

the

Court

on:

Dkt. Dkt.
Dkt.

18
23
24

Motion to Dismiss Amended Complaint Motion for Leave to File Second Amended
Complaint
Response

Dkt. Dkt.

25 26

Notice Reply

In the Amended Complaint, asserts claims

Plaintiff

Frederick V.

Nielsen

for discrimination in employment. that

Plaintiff's

Charge of

Discrimination states

Plaintiff Nielsen was

discriminated against
of the Title VII of

on the basis
Civil

of

sex and race in violation
of 1964, as amended, and

the

Rights Act

the Age

Discrimination

in Employment Act

of

1967,

as

amended.

Plaintiffs Charge
claim of

of

Discrimination was
allegedly denying

amended to
Plaintiff

include a
to

retaliation, internal

access

Defendant's
VII

grievance procedure,

in violation of Title

and the ADEA.

Case

No.

8:08-CV-711-T-17TBM

I.

Standard

of

Review

As

the

Supreme

Court

held

in Bell Atlantic v.

Twomblv,

127

S.Ct.

1955 of

(2007), the

a

complaint must be Rules of Civil
can be

dismissed pursuant Procedure
granted if

to

Rule to

12(b)(6)
state a

Federal

for
it

failure
does not

claim upon which

relief

plead "'enough on its face."
set The this

facts Id.
forth

to

state

a claim for

relief that traditional
355 U.S. 41,

is plausible 12(b)(6)
45-46 presumed be

at
in

1974

(rejecting the
Gibson,

standard (1957)). true at

Conley v.

allegations stage and all

in plaintiff's reasonable

complaint

are

factual

inferences must

construed in plaintiff's accept inferences

favor.

However, if

the such

Court

need not are
the

drawn by plaintiffs
facts set out

inferences

unsupported by the Court accept legal To

in the

complaint. form of the

Nor must factual factual

conclusions

cast

in the

allegations.

survive

a motion

to dismiss,

allegations
relief above 1965.

in the
the

complaint

"must be enough
level."

to

raise

a right
S.Ct.

to
at

speculative

Bell Atlantic,

127

II.

Dkt.

18

Motion

to

Dismiss

A.

Failure

to

Join

Indispensable

Party

Defendant

argues

that

Plaintiff Nielsen

has

filed to argues

join an the

indispensable party, Pinellas
Pinellas

Pinellas County. of Human
and

Defendant is
the

that of

County Office
County

Rights
lacks

a

department

Government,

capacity

to be

sued.

In
that

the

proposed

Second Amended Complaint,
has changed the

the
to

Court

notes

Plaintiff

Nielsen

Defendant

"Pinellas

Case No.

8:08-CV-711-T-17TBM

County,

a political

subdivision of the

State

of

Florida."

After consideration, as to this issue.

the Court

grants

the Motion

to

Dismiss

B.

Failure

to

Comply with

Rule

10(b),

Fed.R.Civ.P.

Defendant

argues

that

the Amended Complaint which are not

contains a single

multiple unnumbered paragraphs set
is

limited to without

of circumstances,
appropriate.

and therefore

dismissal

prejudice

The does not

Court

notes

that

the

proposed Second Amended Complaint

contain

unnumbered paragraphs.

After

consideration,

the

Court

grants

the Motion

to

Dismiss

as

to this

issue.

C.

Failure

to

State

a

Claim

for Violation

of

42

U.S.C.

Sec.

1985(3)

Defendant
sufficient
42 U.S.C.

argues
to

that
a

Plaintiff Nielsen
claim for

does

not
in

allege
of

facts
Sec.

state

conspiracy
argues

violation

1985(3). is

Defendant by the

further

that conspiracy

Plaintiff s

claim

barred

intracorporate

doctrine.

See

Dickerson v.

Alachua County Commission,

200

F.3d

761,

767

(11th Cir.

2000) .

Plaintiff Nielsen Defendant's Motion to

did not Dismiss,

file but

a

response

in

opposition for Leave

to to

filed

a Motion

Amend to
the

file

the proposed Second Amended Complaint.
Second Amended Complaint has not been

However,
as to

proposed

amended

Case No.

8:08-CV-711-T-17TBM

this

issue.

Defendant's Motion
the Court grants

is

unopposed.
to

After
Dismiss as to

consideration,
issue.

the Motion

D.

Failure to

State

a Claim for Violation

of

42

U.S.C.

Sec.

1981

Defendant only sex and
support a

argues

that

Plaintiff's Amended Complaint no facts

alleges

age

discrimination and alleges
for a violation of 42 U.S.C.

necessary to

claim argues

Sec. does

1981. not plead facts

Defendant

that

the Amended Complaint

sufficient to
for the

establish

that

Defendant
See

lacked a
v.

rational basis
Bd. Of on if

alleged 528 of

discrimination. 62, 83-84

Kimel

Fla.

Regents, the basis

U.S. age

(2000)("States may the

discriminate

without

offending

Fourteenth Amendment

the age

classification
state

in question

is

rationally

related to a

legitimate

interest.")

Defendant

further

argues

that

Defendant,

and

the

proper

party that

should be

the

defendant,

is

a

State Actor,

and,

as

such,

Sec.

1981 See

is

not v.

the proper avenue County of Volusia,

for 222

Plaintiff F.3d 891

to seek (11th Cir.

redress.
2000) .

Butts

The

Court

notes

that

Plaintiff's

proposed

Second Amended

Complaint was
unopposed. Dismiss as

not

amended as

to this
the

issue.
Court

Defendant's Motion
grants the Motion to

is

After to this

consideration, issue.

E.

Failure

to

State

a

Claim

for Violation

of

42

U.S.C.

Sec.

1983

Defendant

argues

that

Plaintiff's Amended Complaint

does

not

Case No.

8:08-CV-711-T-17TBM

allege a policy, and therefore
pursuant to 42

custom, to

pattern or practice

of discrimination, liability
of Soc.

fails

state
Sec.

a claim for municipal
See Monell v.

U.S.C.

1983.

Dept.

Serv.

of City of

New York,

436 U.S.

658,

690

(1978).

Defendant allege facts

further

argues to

that

the Amended Complaint that Defendant and

does

not

sufficient for the

establish

lacked a therefore does

rational

basis

alleged discrimination,

not

state a

claim under

Section

1983.

Defendant

further

argues

that

Plaintiff may not maintain a

Section

1983

claim to

the extent that
of the ADEA. F.Supp.2d

the

claim is based on
v. Communications Fla. 2008).

underlying violations Inter-Local Agency,

See 1343,

McNa 1349

551

(M.D.

Defendant's

Motion

is

unopposed.

The

Court

notes

that

the

proposed Second Amended Complaint issue. Dismiss After as to consideration, this issue.

was

not

amended as

to

this to

the Court

grants

the Motion

F.

Failure

to Allege

Facts

Sufficient

to

Invoke

28

U.S.C.

Sec.

1391(e)(3)(2008)
Defendant argues that Plaintiff does not allege that

Defendant

is

an

officer or
and,

employee

of the

United States

or
to

an
28

agency thereof, U.S. C. Sec.

therefore,

cannot

proceed pursuant

1391.

Defendant basis for

further argues over

that

Plaintiff does state law

not

specify the in

jurisdiction Rule 8,

Plaintiff's

claims,

violation of

Fed.R.Civ.P.

Case

No.

8:08-CV-711-T-17TBM

The Court notes Complaint,
his state

that

in the proposed Second Amended that Plaintiff
Civil

Plaintiff Nielsen alleges
law claims pursuant to the

is bringing
Rights Act. to 28 to

Florida was not

The proposed Second Amended Complaint U.S.C. this Sec. 1391(e) (3). After to this Defendant's the

amended as

Motion Court

is

unopposed as

issue. as

consideration, issue.

grants

the Motion to

Dismiss

III.

Motion

for

Leave

to

File

Second Amended Complaint

Plaintiff Nielsen moves

for

leave

to

file

the

proposed

Second Amended Complaint.

Defendant

opposes

Plaintiff's Motion
Defendant

for

Leave

to

File

Second Amended Complaint.

argues

that

Plaintiff's

Motion

should be denied because the proposed Second Amended
does not cure all of the defects of the Amended

Complaint

Complaint.

Defendant

argues

that
to

Plaintiff's proposed Second
to state
1981,

Amended Complaint
42
and

continues
42

fail

a
42

claim pursuant
U.S.C. Sec.

to

U.S.C.
28

Sec.

1985(3),
Sec.

U.S.C.

Sec.

1983,

U.S.C.

1391(e)(3).

Leave
See

to

file

an

amended

complaint
to

should be
v.

freely given.
371 U.S.

Fed.R.Civ.P.

15 (a).

Pursuant

Foman

Davis,

178,

182

(1962),

a

district under

court may properly deny leave 15 (a) when the amendment

to

amend the

complaint

Rule

would be

futile.
the

Denial
as

of

leave

to amend
is still

is

justified by futility when
to dismissal. Burger

complaint

amended

subject

King Corp.
Courts

V.

Weaver,

169

F.3d 1310,
se

1320

(11th Cir.
but
as

1999).
this
facto

should show
not

leniency to pro
give a court

litigants,
to serve

leniency does

license

de

Case No.

8:08-CV-711-T-17TBM

counsel
pleading

for a party,
in order to

or to

rewrite an otherwise deficient
GJR Investments, Inc. v,

sustain an action.

County of Escambia,

Fla.,

132 F.3d 1359,

1369

(11th Cir.

1998).

After consideration,
to File

the Court denies

the Motion

for Leave

Second Amended Complaint because would be subject to dismissal.

the

Second Amended

Complaint

IV.

Dkt.

26

Reply

The subject

Court to the

reminds Federal

Plaintiff Neilsen Rules of Civil

that

Plaintiff

is

Procedure,

and the Local

Rules of the Middle
leave to file a
it

District

of

Florida.

Plaintiff
grant

did not
leave.

seek

Reply,
is

and the Court

did not

Accordingly,

ORDERED that
granted, with

the Motion to
to file an

Dismiss Amended Complaint
amended complaint which

is
all

leave

cures

defects this

of

the It

current Amended Complaint, is further

within

twenty days

of

Order.

ORDERED

that

the

Motion

for Leave

to

File

Second Amended

Complaint

is denied due

to

futility.

Case No. DpNE y

8:08-CV-711-T-17TBM and ORDERED of August, in Chambers, in Tampa, Florida on this

2009.

Copies All

to: and counsel of record

parties