Hearn v. International Business Machines

Filing 32

ORDER: Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint With Prejudice 26 is GRANTED. Plaintiff's Second Amended Complaint is dismissed with prejudice. All pending motions are denied as moot. The Clerk is instructed to close this file. Signed by Judge James S. Moody, Jr on 11/15/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETTY HEARN, pro se,
Plaintiff,
v.

Case No: 8:13-cv-827-T-30EAJ

INTERNATIONAL BUSINESS
MACHINES, MARGARET (PEGGY)
BUIS, DAVID ALLCOCK and RUSSELL
MANDEL,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendants' Motion to Dismiss
Plaintiff's Second Amended Complaint, With Prejudice, and Incorporated Memorandum
of Law (Dkt. #26) and Plaintiff's Response in Opposition to the Motion (Dkt. #28).
Plaintiff commenced this action by filing a complaint against International Business
Machines (“IBM”) on April 1, 2013 (the “Original Complaint”). The Original Complaint
was disorganized and ambiguous. On May 21, 2013, IBM filed a Motion to Dismiss or
for a More Definite Statement with this Court. On June 10, 2013, this Court entered an
Order granting IBM’s Motion to Dismiss, without prejudice to Plaintiff’s right to file an
Amended Complaint. On June 28, 2013, Plaintiff filed an Amended Complaint against
IBM. Plaintiff’s Amended Complaint suffered from many of the same defects as the

Original Complaint. Therefore, on July 8, 2013, IBM filed a Motion to Dismiss
Plaintiff’s Amended Complaint or for More Definite Statement.
On October 1, 2013, this Court issued an Order granting IBM’s Motion to Dismiss
with and without prejudice. In particular, this Court dismissed the following claims with
prejudice: (1) Title VII of the Civil Rights of 1964 (“Title VII”); (2) Florida Civil Rights
Act (“FCRA”); (3) Lily Ledbetter Fair Pay Act (“LLFPA”); and (4) Older Workers
Benefit Protection Act (“OWPBA”). The Court further found that Plaintiff failed to
allege proper factual allegations to state claims of: (1) a violation of 42 U.S.C. §1981
(“Section 1981”); (2) fraudulent misrepresentation; (3) breach of contract; and/or (4)
discrimination under the Equal Pay Act (“EPA”). The Court dismissed these claims
without prejudice and provided Plaintiff until October 15, 2013, to file a Second
Amended Complaint.
This Court again warned Plaintiff that her “allegations and causes of action are not
completely clear” and that if she chose to file a Second Amended Complaint, she “must
sufficiently allege the surviving claims as required by law.” On October 15, 2013,
Plaintiff filed a Second Amended Complaint, her third opportunity to state claims against
IBM. Once again, Plaintiff has failed to sufficiently allege claims against IBM. Further,
her allegations and causes of action are still unclear. Plaintiff added three employees of
IBM as individual Defendants, but did not allege sufficient factual allegations to support
any claims against them. Plaintiff even admits that she may move to dismiss these
individuals as parties.

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In Counts One, Two and Four, Plaintiff attempts to bring claims under the EPA.
However, it appears from the face of the Second Amended Complaint that all of
Plaintiff’s EPA claims are time-barred pursuant to the applicable statute of limitations.
The Plaintiff’s employment with IBM ended March 31, 2010. Plaintiff did not bring this
action until April 1, 2013, more than three years later. Plaintiff did not allege a willful
violation of the EPA, therefore she is subject to a two year statute of limitations. See 29
U.S.C. § 255. Therefore, her claim is time barred. Moreover, Plaintiff did not allege
sufficient facts to support an EPA retaliation claim in Count Four.
Plaintiff’s racial discrimination claim in Count Three, which the Court assumes is
based on Section 1981, fails to plead the requisite elements of a claim under that law
even when taking into account all facts set forth in the Second Amended Complaint. In
addition, Plaintiff’s claim of fraudulent misrepresentation in Count Five of the Second
Amended Complaint fails to state a claim upon which relief can be granted as Plaintiff
fails to sufficiently allege publication of any false representation to her or reliance by her
on such a representation. Finally, in Counts Six and Seven, Plaintiff attempts to bring a
breach of contract claim, but fails to sufficiently allege a breach of a valid contract. As
Plaintiff has now had three opportunities to state a claim in this action and has failed to
do so each time, the Court concludes that the Defendants’ Motion should be granted.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint,
With Prejudice, and Incorporated Memorandum of Law (Dkt. #26) is
GRANTED.

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2.

Plaintiff’s Second Amended Complaint is dismissed with prejudice.

3.

All pending motions are denied as moot.

4.

The Clerk is instructed to close this file.

DONE and ORDERED in Tampa, Florida, this 15th day of November, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-827 mtd 26.docx

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