Green v. Intuit, Inc.

Filing 24

ORDER. "Defendant's Motion to Dismiss Plaintiff's Complaint" (Doc. 6) is granted. The complaint (Doc. 1) is dismissed without prejudice, with leave to amend. Plaintiff is directed to file an amended complaint, if she may do so in good faith, to cure the defects identified in this Order on or before October 23, 2023. Failure to file an amended complaint as directed will result in this Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020). See Order for details. Signed by Judge Thomas P. Barber on 10/5/2023. (MEJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERICA GREEN,
Plaintiff,
v.

Case No. 8:23-cv-1039-TPB-AAS

INTUIT, INC.,
Defendant.
_____________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S “MOTION TO DISMISS PLAINTIFF’S COMPLAINT”
This matter is before the Court on “Defendant’s Motion to Dismiss Plaintiff’s
Complaint,” filed on June 2, 2023. (Doc. 6). On June 7, 2023, Plaintiff filed a
response in opposition to the motion. (Doc. 9). After reviewing the motion,
response, court file, and the record, the Court finds as follows:
Background 1
Plaintiff Erica Green worked for Defendant Intuit, Inc. as a season tax
associate until she was terminated in February 2022. (Doc. 6). Plaintiff alleges she
was terminated after being wrongly accused of claiming sick time on a day she was
not working because she is a black woman who suffers from several disabilities that
significantly limit her daily activities, including asthma and migraines.

The Court accepts as true the facts alleged in the complaint for purposes of ruling on the
pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling
on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.”). The Court is not required to accept as true any legal
conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

1

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Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to
relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
allegations,” it does require “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
allegations must be sufficient “to state a claim to relief that is plausible on its
face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the
complaint’s legal sufficiency, and is not a procedure for resolving factual questions
or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic
Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,
2009) (Lazzara, J.).
As Plaintiff in this case is proceeding pro se, the Court more liberally
construes the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018).
However, a pro se plaintiff must still conform with procedural rules and the Court

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does not have “license to act as de facto counsel” on behalf of a pro se plaintiff.
United States v. Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).
Analysis
Defendant seeks to dismiss Plaintiff’s complaint as a shotgun pleading. In
addition, Defendant also argues that Plaintiff fails to state a claim for libel in Count
III and seeks dismissal with prejudice.
Shotgun Pleading
Defendant first argues that the complaint constitutes a shotgun pleading. A
shotgun pleading is one where “it is virtually impossible to know which allegations
of fact are intended to support which claim(s) for relief” and the defendant therefore
cannot be “expected to frame a responsive pleading.” See Anderson v. Dist. Bd. Of
Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996). The
Eleventh Circuit has identified four primary types of shotgun pleadings, including:
(1)

complaints containing multiple counts where each count adopts
the allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be a
combination of the entire complaint;

(2)

complaints that do not commit the mortal sin of re-alleging all
preceding counts but are guilty of the venial sin of being replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action;

(3)

complaints that commit the sin of not separating into a different
count each cause of action or claim for relief; and

(4)

complaints that assert multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which actions or omissions, or which of the
defendants the claim is brought against.

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See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir.
2015). A district court must generally permit a plaintiff at least one opportunity to
amend a shotgun complaint’s deficiencies before dismissing the complaint with
prejudice. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018).
Plaintiff’s complaint contains counts that reallege all prior claims before it,
committing the “mortal sin” described in prong one of Weiland. See 792 F.3d at
1322-23. More specifically, Counts II and III incorporate all preceding paragraphs,
thereby incorporating all prior claims. This constitutes a shotgun pleading. This
defect alone would result in the Court’s dismissal of the complaint.
Plaintiff’s complaint also commits the “sin” of not separating each cause of
action or claim for relief into a different count. Count I alleges both racial
discrimination under Title VII of the Civil Rights Act and disability discrimination
under the Americans with Disabilities Act (ADA). This improper mixing of claims
makes it difficult for Defendant to respond appropriately and present defenses, and
for the Court to appropriately adjudicate this case. In any amended complaint,
Plaintiff should separate each cause of action into separate counts.
Libel Claim
Defendant also seeks to dismiss with prejudice Plaintiff’s libel claim in Count
III. Upon review, the Court finds that Plaintiff’s libel claim is insufficiently
pleaded.
To succeed on a libel claim, a “plaintiff must allege that ‘(1) the defendant
published a false statement (2) about the plaintiff, (3) to a third party, and (4) the
falsity of the statement caused injury to the plaintiff.’” Alan v. Wells Fargo Bank,
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604 F. App’x 863, 865 (11th Cir. 2015) (quoting Valencia v. Citibank Int’l, 728 So. 2d
330, 330 (Fla. 3d DCA 1999)). Here, Plaintiff references only two communications
to support her libel claim: (1) direct e-mails and Slack messages between herself
and Defendant, and (2) statements made by Defendant in filings with the Equal
Employment Opportunity Commission (“EEOC”).
First, considering allegedly defamatory statements in e-mails or Slack
messages, the complaint is not entirely clear as to the recipients of the allegedly
defamatory communications. The communications that Plaintiff attaches to her
complaint appear to be direct communications between Plaintiff and Defendant,
with no other parties copied. Any direct communications between Plaintiff and
Defendant that were not distributed to a third party would not be actionable. See
Clowdus v. Am. Airlines, Inc., No. 22-14053, 2023 WL 5011731, at *4 (11th Cir. Aug.
7, 2023) (“Under Florida law, when the entity that allegedly committed defamation
is a corporation, ‘statements made to corporate executive or managerial employees
of that entity are, in effect, being made to the corporation itself, and thus lack the
essential element of publication.’”) (quoting Am. Airlines v. Geddes, 960 So. 2d 830,
833 (Fla. 3d DCA 2007)).
Although a plaintiff is generally not required to specifically identify third
parties who received defamatory publications to state a claim, because Plaintiff’s
own exhibits have highlighted this issue, the Court will require Plaintiff to plead
her libel claim with more specificity. In any amended complaint, Plaintiff should
more precisely identify any third parties that received the allegedly defamatory
statements.
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Next, considering statements in the EEOC filings, the complaint again lacks
clarity. Plaintiff attaches two documents related to EEOC filings – a statement of
position sent by Defendant to the EEOC investigator and a response to the EEOC’s
request for information. Statements made in EEOC filings are generally afforded
absolute immunity and cannot give rise to liability for a libel claim. Diamond
Resorts Int’l, Inc. v Aaronson, 371 F. Supp. 3d 1088, 1110-11 (M.D. Fla. 2022)
(“Florida’s litigation privilege provides absolute immunity to statements or acts . . .
made or committed in judicial or quasi-judicial proceedings . . ..”); Suarez v. School
Bd. of Hillsborough Cty. Fla., No. 8:13-cv-01238-EAK-MAP, 2014 WL 1946536, at
*3 (M.D. Fla. May 14, 2014) (holding that absolute immunity applicable to allegedly
defamatory statements made during EEOC investigation as a quasi-judicial
proceeding). In this case, it appears that the attached communications made during
the EEOC investigation were published for the purpose of and were relevant to the
EEOC proceedings, and it is therefore unlikely that Plaintiff will be able to state a
libel claim based on these communications. However, in an abundance of caution,
the Court will grant leave to amend.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant’s Motion to Dismiss Plaintiff’s Complaint” (Doc. 6) is
GRANTED.
(2) The complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE, with
leave to amend.

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(3) Plaintiff is directed to file an amended complaint, if she may do so in good
faith, to cure the defects identified in this Order on or before October 23,
2023. Failure to file an amended complaint as directed will result in this
Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc.
v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020).
DONE and ORDERED in Chambers, in Tampa, Florida, this 5th day of
October, 2023.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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