Barr v. One Touch Direct, LLC et al
Filing
78
ORDER: One Touch Direct, LLC, AT&T Services, Inc., and DPG Employee Leasing LLC's Motion to Dismiss (Doc. # 69 ), and Defendants Joseph Mole and Christopher Reed's Motion to Dismiss (Doc. # 70 ) are granted to the extent provided herein. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/22/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.
Case No. 8:15-cv-2391-T-33MAP
ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This
matter
comes
before
the
Court
pursuant
to
Defendants One Touch Direct, LLC, AT&T Services, Inc., and
DPG Employee Leasing LLC’s Motion to Dismiss (Doc. # 69),
filed on April 4, 2016. Also before the Court is Defendants
Joseph Mole and Christopher Reed’s Motion to Dismiss (Doc. #
70), filed on April 4, 2016. Plaintiff Alfred Barr filed a
response to One Touch Direct, AT&T, and DPG’s Motion on April
14, 2016. (Doc. # 74). Barr filed his response to Mole and
Reed’s Motion on April 15, 2016. (Doc. # 76). The Motions are
ripe for review and, for the reasons stated below, the Court
grants the Motions to the extent provided herein.
I.
Background
This action arises from, among other things, alleged
work-place
discrimination.
(Doc.
1
#
1).
Barr
filed
his
original Complaint on October 9, 2015. (Id.). AT&T and DPG
moved to dismiss the Complaint. (Doc. # 19). Likewise, One
Touch Direct moved to dismiss the Complaint. (Doc. # 21).
Barr filed responses to the Motions (Doc. ## 25-26), as well
as two Motions to Amend. (Doc. ## 29-30). The Court granted
Barr leave to file an amended complaint. (Doc. # 33).
Subsequently, Barr filed an Amended Complaint on January
19, 2016. (Doc. # 38). One Touch Direct, AT&T, and DPG moved
to dismiss the Amended Complaint. (Doc. # 43). Mole and Reed
also moved to dismiss the Amended Complaint; Mole and Reed
sought
dismissal,
in
part,
under
Federal
Rule
of
Civil
Procedure 12(b)(5) for insufficient service of process. (Doc.
# 44). Because Barr failed to timely respond to One Touch
Direct, AT&T, and DPG’s Motion, the Court granted the Motion
as unopposed. (Doc. # 50). Upon Barr’s Motion (Doc. # 53),
the Court granted him permission to file a second amended
complaint (Doc. # 56).
Before filing his Second Amended Complaint on March 18,
2016, (Doc. # 64), Barr filed a Motion to Compel as to Mole’s
and Reed’s initial disclosures under Rule 26, Fed. R. Civ. P.
(Doc. # 60). Mole and Reed filed a response to Barr’s Motion
to Compel, in which they argued service was never properly
effected and, thus, they were under no obligation to serve
2
initial
disclosures.
(Doc.
#
65).
The
Second
Amended
Complaint contains five counts:
Count I——“Violations of Title VII is Plead
Against All Defendants’ [sic] Equally”;
Count II——“Florida’s Whistleblower Act (FWA)
Against AT&T and OTD”;
Count III——“Violations of the FLSA – 29 CFR
1620.33 – Against OTD, DPG, Mole and Reed”;
Count IV——“Violations of Title I ADA Against OTD,
DPG, Mole and Reed”; and
Count V——“Interference with At-Will Business
Relationships Against AT&T.”
(Doc. # 64 at 4, 6, 9, 12, 14) (capitalization not in original
and bolding omitted). In response to the Second Amended
Complaint, One Touch Direct, AT&T, and DPG moved to dismiss.
(Doc. # 69). Likewise, Mole and Reed moved to dismiss the
Second Amended Complaint, in part moving under Rule 12(b)(5).
(Doc. # 70). The Motions are now ripe for review.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
3
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
stated
in
[the]
complaint
and
all
reasonable
inferences
therefrom are taken as true”). However:
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
A.
Barr
Failure to Caption the Motions as Dispositive
argues
this
Court
should
deny
Defendants’
respective Motions outright for their failure to label the
Motions as dispositive. (Doc. ## 74 at 1-2, 4; 76 at 2-3). In
support of his argument, Barr correctly notes that Local Rule
3.01(h) states in part, “[a]ll dispositive motions must be so
4
designated in the caption of the motion.” Barr also cites
Whineglass
v.
Smith,
No.
8:11-cv-2784-T-23TGW,
2013
WL
2237841 (M.D. Fla. May 21, 2013), and Dimieri v. Medici
Pharmaceutical
Corp.,
No.
2:14-cv-176-SPC-DNF,
2015
WL
2238196 (M.D. Fla. May 12, 2015), as support.
In Whineglass the plaintiffs requested, “[a]s an aside,”
summary judgment in their favor by way of a response to a
motion for summary judgment filed by the defendants. 2013 WL
2237841, at *5 n.3 (alteration in original). In a similar
fashion, the defendants in Dimieri filed a motion entitled
“Motion
to
Strike
Plaintiff’s
Expert
Report
and
Amended
Motion for Summary Judgment and Incorporated Memorandum of
Law.” 2015 WL 2238196 at *1. The court in Dimieri denied the
motion’s request for summary judgment because it “lumped
together” a motion for summary judgment with another motion.
Id.
at
*3-4.
Thus,
Whineglass
and
Dimieri
are
distinguishable.
In contrast, the Court finds McLaughlin v. Brennan, No.
3:13-cv-987-J-34-MCR, 2016 WL 1271514, at *3-4 (M.D. Fla.
Mar. 31, 2016), persuasive. The court in McLaughlin was faced
with an argument similar to the one advanced by Barr: namely,
an otherwise properly filed motion should be denied if it
does not have the word “dispositive” in the caption. Id. The
5
McLaughlin court declined to read Whineglass, Dimieri, and
Local
Rule
3.01(h)
as
requiring
denial
of
an
otherwise
properly filed motion solely because it failed to include the
word “dispositive” in the caption. Id. Rather, the court in
McLaughlin noted that the motion before it only sought summary
judgment and was properly titled as seeking that relief. Id.
at *4. Noting such a motion was, “of course, a dispositive
motion,”
the
court
rejected
the
3.01(h)
argument
and
proceeded to the merits. Id.
As in McLaughlin, the Motions in this case seek one form
of relief——dismissal with prejudice. A motion to dismiss is
a dispositive motion. Karl C. Mitchell v. Warden Stanley
Williams, et al., No. 6:15-cv-93, 2016 WL 1559165, at *3 (S.D.
Ga. Apr. 18, 2016) (stating, “[a] motion to dismiss is
dispositive
in
nature
.
.
.”).
McLaughlin’s
reasoning
therefore applies with equal force here. As such, the Court
declines to deny Defendants’ respective Motions based solely
on the fact they are not labeled as “dispositive” in the
captions, and will proceed to the merits of the Motions.
However, the Court takes this opportunity to remind
counsel for Defendants that he, too, must comply with all
Local Rules, as well as the Federal Rules of Civil Procedure.
6
B.
Service of Process as to Mole and Reed
Rule 4(c), Fed. R. Civ. P., prescribes that the plaintiff
bears the responsibility of effecting service. “Service of
process
is
a
jurisdiction
jurisdictional
over
the
person
requirement:
of
a
a
court
defendant
lacks
when
that
defendant has not been served.” Pardazi v. Cullman Med. Ctr.,
896 F.2d 1313, 1317 (11th Cir. 1990). A defendant may assert
the defense of insufficient service of process by way of a
pre-answer motion. Fed. R. Civ. P. 12(b)(5).
But, “[u]nder Fed. R. Civ. P. 12(h)(1), a party is deemed
to have waived any objection to personal jurisdiction or
service of process if the party makes a pre-answer motion
under Rule 12 and fails to include such objections in that
motion.” Pardazi, 896 F.2d at 1317. “[A] party’s right to
dispute personal jurisdiction is waived if the party fails to
assert that objection in its other responsive pleading or
general appearance.” Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d 1210, 1218 n.21 (11th Cir. 2009); see also Baragona
v. Kuwait Gulf Link Transp. Co., 594 F.3d 852, 854 (11th Cir.
2010)
(noting
defendant
can
waive
personal
jurisdiction
defense by making an appearance, “was involved in overt
wrongdoing to deceive the court and avoid service of process,”
and might waive the defense by ignoring faulty service).
7
Barr’s primary argument in opposition to Mole and Reed’s
Motion
is
that
Mole
and
Reed
waived
the
defense
of
insufficient service of process and have consented to the
jurisdiction of the Court. However, after review, the Court
determines no such waiver has occurred in this case.
To begin, Barr argues Matthew David Westerman, Esq.
appeared on behalf of Mole and Reed at the Case Management
Hearing on January 13, 2016. (Doc. # 76 at 3) (stating “[t]he
court asked whether Attorney Westerman was counsel for [Mole]
and
[Reed]
proceedings,
for
the
purposes
Attorney
of
Westerman
the
January
responded
13,
2016
in
the
affirmative”). However, Barr does not provide a transcript of
the January 13, 2016, Case Management Hearing. The Court,
therefore, must rely on its own recollection of the Case
Management
Hearing.
Based
on
the
Court’s
recollection,
Westerman appeared on behalf of One Touch Direct, AT&T, and
DPG. When asked by the Court whether he represented Mole and
Reed, Westerman indicated that he might if service were
effected as to Mole and Reed.
Barr further argues that Mole and Reed waived the defense
of insufficient service of process by filing an answer,
including other arguments in their Motion, and participating
8
in
litigation.
(Id.
at
5,
12).
These
arguments
are
unpersuasive.
Mole and Reed have not filled any pleading in this case.
See Fed. R. Civ. P. 7 (defining what constitutes a pleading
and a motion). To be sure, a review of the record demonstrates
Mole and Reed’s first filing was a Motion to Dismiss pursuant
to, in part, Rule 12(b)(5). (Doc. # 44). The record further
shows Mole and Reed have repeatedly asserted the defense of
insufficient
service
of
process.
(Doc.
##
65,
70,
77).
Moreover, the inclusion of other defenses in Mole and Reed’s
Motion does not equate to a waiver of their defense of
insufficient service of process. See Fed. R. Civ. P. 12(b)
(stating, “[n]o defense or objection is waived by joining it
with one or more other defenses or objections in a responsive
pleading or in a motion”); Fed. R. Civ. P. 12(g)(1) (noting
defendant may join multiple Rule 12 motions together).
In addition, Mole and Reed’s requests for extensions of
time and responses in opposition to Barr’s various motions——
especially when one of those responses asserted the very
defense of insufficient service of process (Doc. # 65)——do
not constitute a waiver of the defense. See Clark v. City of
Zebulon, 156 F.R.D. 684, 694 (N.D. Ga. 1993) (concluding that
“the fact that the [defendant] continued to participate in
9
discovery and in the process of moving the case toward trial
does not constitute waiver of the defenses”).
Having determined Mole and Reed did not waive the defense
of insufficient service of process, the Court turns to whether
service was sufficient. Rule 4(e) provides a person may be
served by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in
the state where the district court is located or
where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of
the complaint to the individual personally;
(B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone
of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e). In turn, Florida law provides:
[s]ervice of original process is made by delivering
a copy of it to the person to be served with a copy
of the complaint, petition, or other initial
pleading or paper or by leaving the copies at his
or her usual place of abode with any person residing
therein who is 15 years of age or older and
informing the person of their contents.
Fla. Stat. § 48.031(1)(a). Although substitute service is
allowed,
Id.
at
§§
48.031(2)(a)-(b),
applicable here.
10
neither
method
is
In
this
case,
because
Barr
is
proceeding
in
forma
pauperis, a United States deputy marshal or clerk attempted
to effect service. See Fed. R. Civ. P. 4(c)(3); (Doc. ## 5,
41-42). The returns of service indicate that process was
served on Nancy Heck, who is listed as an office manager.
(Doc. ## 41-42). As the returns of service indicate, service
was not effected on either Mole or Reed because serving an
office manager does not satisfy the requirement of personal
service. Lowe v. Hart, 157 F.R.D. 550, 552 (M.D. Fla. 1994)
(citing Stoeffler v. Castagliola, 629 So. 2d 196, 197 (Fla.
2DCA 1993)); see also Anthony v. Gary J. Rotella & Assocs.,
P.A., 906 So. 2d 1205, 1206-08 (Fla. 4th DCA 2005) (holding
personal service not effected by leaving process with coworker).
If a defendant is not served within the time limit
prescribed in Rule 4(m), “the court——on motion or on its own
after
notice
without
to
prejudice
the
plaintiff——must
against
that
dismiss
defendant
or
the
action
order
that
service be made within a specified time.” Fed. R. Civ. P.
4(m). Although Mole and Reed request dismissal with prejudice
(Doc. # 70 at 9), the Court declines to do so. Rather, the
Court will permit Barr another opportunity to have service
properly effected through a United States marshal. Service of
11
process must be effected, and proof thereof filed with the
Court, by May 11, 2016. Failure to effect service by May 11,
2016, will result in the action being dismissed as against
Mole and Reed.
C.
Individual Liability under Title VII and the ADA
Counts I and IV of the Second Amended Complaint allege
violations of Title VII and the ADA, respectively, against
Mole and Reed. (Doc. # 64 at 4, 12). However, individuals are
not liable under either Title VII or the ADA. Pouyeh v. UAB
Dep’t of Ophthalmology, 625 Fed. Appx. 495, 498-99 (11th Cir.
2015) (stating that plaintiff “failed to state a claim . . .
because there is no individual liability under . . . Title
VII” (citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir. 1991))); Tobar v. Fed. Defs. Middle Dist. of Ga., Inc.,
618 Fed. Appx. 982, 985 n.2 (11th Cir. 2015) (noting that
“district court correctly dismissed [defendant] from the
lawsuit because there is no individual liability under . . .
the ADA” (citing Albra v. Advan, Inc., 490 F.3d 826, 830 (11th
Cir. 2007) (stating, “individual liability is precluded for
violations
of
the
ADA’s
employment
discrimination
provision”))). Thus, Counts I and IV are dismissed with
prejudice insofar as they are brought against Mole and Reed.
12
D.
Shotgun Pleading
“A defendant served with a shotgun complaint should move
the district court to dismiss the complaint pursuant to Rule
12(b)(6) or for a more definite statement pursuant to Rule
12(e) on the ground that the complaint provides it with
insufficient notice to enable it to file an answer.” Paylor
v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir.
2014) (footnotes omitted). Furthermore, courts are under an
independent obligation to order a repleader when faced with
a shotgun pleading. McWhorter v. Miller, Einhouse, Rymer &
Boyd, Inc., No. 6:08–cv–1978–Orl–31KRS, 2009 WL 92846, at *2
(M.D. Fla. Jan. 14, 2009) (citing Byrne v. Nezhat, 261 F.3d
1075, 1133 (11th Cir. 2001)).
The Eleventh Circuit has “identified four rough types or
categories of shotgun pleadings”: (1) “a complaint containing
multiple counts where each count adopts the allegations of
all preceding counts . . .”; (2) a complaint that is “replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) a complaint
that does “not separat[e] into a different count each cause
of action or claim for relief”; and (4) a complaint that
“assert[s]
multiple
claims
against
multiple
defendants
without specifying which of the defendants are responsible
13
for which acts or omissions, or which of the defendants the
claim
is
brought
against.”
Weiland
v.
Palm
Beach
Cty.
Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015).
The Second Amended Complaint fails to separate each
cause of action or claim for relief into a different count.
For
example,
Count
I
asserts
claims
for
discrimination,
retaliation, and hostile-work environment. Adams v. Austal,
U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir. 2014)
(listing elements for hostile-work environment claim); Rainey
v. Holder, 412 Fed. Appx. 235, 237-38 (11th Cir. 2011)
(listing
elements
retaliation
claims).
for
Count
employment-discrimination
II
asserts
claims
under
and
two
different statutes. Count III is labeled as asserting an FLSA
claim, but it also mentions the Equal Pay Act. Continuing the
trend,
Count
IV
asserts
claims
for
discrimination
and
retaliation under the ADA. Parker v. Econ. Opportunity for
Savannah-Chatham Cty. Area, Inc., 587 Fed. Appx. 631, 633
(11th Cir. 2014) (listing elements for retaliation claim
under the ADA); Wofsy v. Palmshores Ret. Cmty., 285 Fed. Appx.
631, 632 (11th Cir. 2008) (listing elements for employmentdiscrimination claim under the ADA). Barr must separate each
cause of action or claim into different counts.
14
Furthermore, the Second Amended Complaint also falls
into the fourth category of shotgun pleadings. For example,
Count I alleges three different claims against five different
Defendants. In addition, it is not evident which Defendant is
alleged to be responsible for which acts. Even accepting
Barr’s convention of using an apostrophe to differentiate
between singular and plural conjugates of a word (e.g.,
“defendant’s” denoting singular and “defendants’” denoting
plural (Doc. # 74 at 10)), uncertainty remains as to which
allegations apply to a particular Defendant. A prime example
is the second sentence of Paragraph 22, which states, in part,
“[t]he defendant’s computer and business records establish
evidence . . . .” (Doc. # 64 at ¶ 22). The allegation begs
the question, which of the five Defendants have a computer
and business records that form the putative evidence?
Count V is also of the shotgun variety. Count V attempts
to bring a claim for interference with an at-will business
relationship against AT&T. (Doc. # 64 at 14). However, it is
less than obvious with which of the Defendants Barr allegedly
had a business relationship that was tortuously interred with
by AT&T. Due to this uncertainty, the Court is unable to
accurately determine whether Count V states a cause of action.
15
IV.
Conclusion
Because Barr is proceeding in forma pauperis, he is
directed to complete and return the “Summons in a Civil Case”
form to the Clerk, whereupon the United States marshal is
directed
to
serve
those
summonses
upon
the
appropriate
parties. Service of process must be effected in accordance
with Federal Rule of Civil Procedure 4 as to Mole and Reed,
and proof thereof filed, by May 11, 2016.
Furthermore,
Counts
I
and
IV
are
dismissed
with
prejudice as to Mole and Reed. Finally, the remaining portions
of the Second Amended Complaint constitute a shotgun pleading
and,
therefore,
are
due
to
be
dismissed.
However,
such
dismissal is without prejudice. If Barr elects to file a third
amended complaint, he must address the deficiencies discussed
herein. Barr has until May 16, 2016, to file a third amended
complaint. In ordering a repleader, the Court points out that
the Federal Rules of Civil Procedure “work together ‘to
require the pleader to present his claims discretely and
succinctly . . . .’” Fikes v. city of Daphne, 79 F.3d 1079,
1082 (11th Cir. 1996) (citation omitted).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
16
(1)
One Touch Direct, LLC, AT&T Services, Inc., and DPG
Employee Leasing LLC’s Motion to Dismiss (Doc. # 69),
and Defendants Joseph Mole and Christopher Reed’s Motion
to Dismiss (Doc. # 70) are GRANTED to the extent provided
herein.
(2)
Counts I and IV of the Second Amended Complaint are
DISMISSED
WITH
PREJUDICE
as
to
Joseph
Mole
and
Christopher Reed.
(3)
Plaintiff Alfred Barr is directed to complete and return
the
“Summons
in
a
Civil
Case”
form
to
the
Clerk,
whereupon the United States marshal is DIRECTED to serve
those summonses upon the appropriate parties.
(4)
Service of process must be effected in accordance with
Federal Rule of Civil Procedure 4 as to Mole and Reed,
and proof thereof filed, by May 11, 2016.
(5)
Plaintiff Alfred Barr has until May 16, 2016, to file a
third amended complaint.
DONE and ORDERED in Chambers in Tampa, Florida, this
22nd day of April, 2016.
17
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