Pinto v. Microsoft Corporation
Filing
56
ORDER granting 36 Motion for Judgment on the Pleadings and Dismissing Complaint with Leave to Amend. Amended Complaint due by 10/5/2012. Signed by Judge James I. Cohn on 9/28/2012. (npd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 12-60509-CIV-COHN/SELTZER
MYRNA PINTO,
Plaintiff,
v.
MICROSOFT CORPORATION,
a foreign corporation,
Defendant.
___________________________________/
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS AND
DISMISSING COMPLAINT WITH LEAVE TO AMEND
THIS CAUSE is before the Court on Defendant Microsoft Corporation’s Motion
for Judgment on the Pleadings [DE 36] (“Motion”). The Court has carefully reviewed
the Motion, Plaintiff’s Response [DE 42] (“Response), Defendant’s Reply [DE 45], the
record in the case, and is otherwise fully advised in the premises.
I. BACKGROUND
Plaintiff Myrna Pinto (“Plaintiff”) commenced this action on January 30, 2012.
Complaint, Exhibit A to the Notice of Removal [DE 1]. Defendant Microsoft Corporation
(“Defendant”) removed this action to this Court on March 20, 2012. Notice of Removal
[DE 1]. In the Complaint, Plaintiff contends that she was hired by Defendant in June
2001 and received glowing performance reviews through fiscal year 2008. See Compl.
¶¶ 5-8. In June 2009, Plaintiff attended a meeting with the Broward Sheriff’s Office
(“BSO”) wherein her manager Steven D. Halliwell (“Halliwell”) presented the BSO with a
false letter that stated that the BSO had violated certain licensing agreements. Id. ¶ 11.
Plaintiff contends that this letter was intended to induce BSO to purchase a large
quantity of software before the end of Defendant’s fiscal year. Id. After this meeting,
Plaintiff objected to Halliwell’s conduct. Id. ¶ 12. Shortly thereafter, Plaintiff received a
performance evaluation for fiscal year 2009 which categorized her as
“underperforming.” Id. ¶ 13. In or around November 2009, Plaintiff again objected to
Halliwell’s “unethical and illegal business practice[s]” with employees from the City of
Miami. Id. ¶¶ 18, 20.
After this second incident, Plaintiff reported Halliwell’s conduct to Defendant’s
Office of Legal Compliance and Financial Integrity Unit. Id. ¶ 21. Plaintiff alleges that
after she made these complaints, her work environment became increasingly hostile
and that she was subject to retaliatory actions. Id. ¶ 25. During a September 13, 2011
regional sales meeting, Plaintiff listened to a speaker describe “creative licensing”
techniques which could be used to defraud governmental clients into believing they had
purchased valid licenses. Id. ¶ 28. At the meeting, Plaintiff publicly objected to this
practice and refused to participate in it. Id. ¶ 30. The very next day, Plaintiff received
another performance evaluation where she was deemed “underperforming” and was
immediately fired and removed from the building. Id. ¶ 31.
The Complaint brings a single claim against Defendant for violation of the Florida
Whistleblower Protection Act, Fla. Stat. §§ 448.101-448.105 (“WPA”). Id. ¶¶ 33-37.
Plaintiff contends that she was fired solely for engaging in conduct protected by the
WPA. Id. ¶ 35. Defendant has now filed the instant Motion which seeks judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that
Plaintiff fails to state a claim. Plaintiff opposes the Motion.
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II. DISCUSSION
A. Legal Standard.
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are
closed–but early enough not to delay trial–a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate when
there are no material facts in dispute and the moving party is entitled to judgment as a
matter of law based on the substance of the pleadings and any judicially noticed facts.
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008). A motion for
judgment on the pleadings is governed by the same standard as a motion to dismiss for
failure to state a claim on which relief may be granted. Hawthorne v. Mac Adjustment,
Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).
A court shall grant a motion to dismiss for failure to state a claim on which relief
may be granted where, based upon a dispositive issue of law, the factual allegations of
the complaint cannot support the asserted cause of action. Glover v. Liggett Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006). Indeed, “[f]actual 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). Thus, a complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Nonetheless, a complaint must be liberally construed, assuming the facts alleged
therein as true and drawing all reasonable inferences from those facts in the plaintiff’s
favor. Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because
the court is doubtful that the plaintiff will be able to prove all of the necessary factual
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allegations. Id. Accordingly, a well pleaded complaint will survive “even if it appears
‘that a recovery is very remote and unlikely.’” Id. at 556 (quotation omitted).
B. Plaintiff’s Complaint Fails to State a Claim Under the WPA.
Defendant moves for judgment on the pleadings because Plaintiff “fails to
identify any law, rule, or regulation enacted by a legislative or administrative forum that
Microsoft’s alleged conduct violated, and therefore fails to give Microsoft fair notice of
what her claim is and the grounds upon which it is based.” Motion at 1. Defendant
seeks dismissal of the Complaint with prejudice. Id. at 2. In opposition, Plaintiff
contends that she “more than adequately alleges conduct that was (and is) violative of
laws, rules and regulations as defined by the WPA.” Response at 2. Plaintiff also
contests that she is not required “to recite the exact violations objected to at the initial
pleading stage.” Id. at 2-3.
Florida Statutes § 448.102 provides that:
An employer may not take any retaliatory personnel action
against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate
governmental agency, under oath, in writing, an activity,
policy, or practice of the employer that is in violation of a
law, rule, or regulation. However, this subsection does not
apply unless the employee has, in writing, brought the
activity, policy, or practice to the attention of a supervisor or
the employer and has afforded the employer a reasonable
opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any
appropriate governmental agency, person, or entity
conducting an investigation, hearing, or inquiry into an
alleged violation of a law, rule, or regulation by the
employer.
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(3) Objected to, or refused to participate in, any activity,
policy, or practice of the employer which is in violation of a
law, rule, or regulation.
Fla. Stat. § 448.102 (emphasis added). The statute defines “[l]aw, rule, or regulation”
as “any statute or ordinance or any rule or regulation adopted pursuant to any federal,
state, or local statute or ordinance applicable to the employer and pertaining to the
business.” Fla. Stat. § 448.101(4). To establish a prima facie case under the WPA, the
Plaintiff must establish “1) that she objected to or refused to participate in any illegal
activity, policy or practice of Defendant; 2) she suffered an adverse employment action;
and 3) the adverse employment action was causally linked to her objection or refusal.”
Gleason v. Roche Labs., Inc., 745 F. Supp. 2d 1262, 1270 (M.D. Fla. 2010).
Here, Defendant contends that it is entitled to judgment on the pleadings
because Plaintiff has failed to “identify any specific enacted law, statute, ordinance,
regulation or administrative rule that was allegedly violated by Microsoft.” Motion at 9.
Plaintiff, on the other hand, asserts that she need not cite to specific laws to establish a
prima facie WPA claim. Response at 6. Thus, the Court must determine whether
Plaintiff is required to specifically cite laws, rules or regulations that has been violated in
her Complaint to state a claim under the WPA. Upon review of the Complaint and the
relevant statutory language, the Court agrees with Defendant, that as currently plead,
Plaintiff fails to state a WPA claim.
In order to state a WPA claim, the Plaintiff must refer to specific laws, rules or
regulations which Defendant violated. In El Toro Exterminator of Fla. v. Cermada, the
Third District Court of Appeal described a plaintiff’s failure to cite to specific statutes in
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his complaint as “technical deficiencies.” 953 So. 2d 616, 618 (Fla. Dist. Ct. App.
2007). In Ceramada, the appeals court affirmed both the trial court’s denial of
defendant’s motion for directed verdict and its decision to permit the plaintiff to amend
his pleadings to conform to the evidence adduced at trial. Id. If citation to specific laws
or regulations were not necessary under the statute, the trial court would not have
required the plaintiff to amend his pleadings to conform to the evidence presented at
trial. Accordingly, the Court finds that Plaintiff’s complaint, which fails to cite to any
specific violation of law, rule, or regulation, currently fails to state a claim.
C. Plaintiff Should be Granted Leave to Amend.
Although the Court finds that the Complaint, as presently pleaded, is deficient,
the Court disagrees that dismissal with prejudice is warranted. Under Federal Rule of
Civil Procedure 15(a), a court should give leave to amend freely “when justice so
requires.” Fed. R. Civ. P. 15(a). Generally, “a party must be given at least one
opportunity to amend before the district court dismisses the complaint.” Corsello v.
Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). “Although the rule is typically
applied after a court grants a Rule 12(b)(6) motion to dismiss when a plaintiff fails to
state a claim upon which relief can be granted, . . . courts also apply the rule in the
context of a 12(c) motion for judgment on the pleadings. Williams v. Monroe Cnty. Bd.
of Educ., No. 07-0561-CG-B, 2009 WL 1767658, at *5 -6 (S.D. Ala. June 23, 2009)
(citing Spitsyn v. Morgan, 160 Fed. Appx. 593, 594 (9th Cir. 2005) (“Before entering
judgment based on an inadequate pro se complaint, a district court should briefly
explain the deficiencies of the complaint to the pro se litigant and provide leave to
amend unless it is absolutely clear that the deficiencies of the complaint could not be
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cured by amendment.”); Canty v. Wackenhut Corr. Corp., 255 F. Supp. 2d 113,117-18
(E.D.N.Y. 2003) (dismissing certain claims “without prejudice” pursuant to a Rule 12(c)
motion and allowing pro se plaintiff leave to amend); United States ex rel. Bledsoe v.
Cmty. Health Sys., 342 F.3d 634, 644-45 (6th Cir. 2003) (district court abused its
discretion when it did not allow plaintiff leave to amend complaint after court granted
Rule 12(c) motion); United States ex rel. Goldstein v. Fabricare Draperies, Inc., 84 Fed.
Appx. 341, 343 (4th Cir. 2004) (district court granted leave to amend complaint in an
order granting Rule 12(c) motion)).
Here, Plaintiff’s failure to include citations to laws, rules, or regulation is a mere
technical deficiency. Given that discovery is still ongoing and the Complaint describes
the underlying conduct Plaintiff contends is illegal, the Court finds that Defendant would
not be prejudiced if the Court grants Plaintiff leave to amend. Indeed, in Cernada, the
court found there was no prejudice to the defendant when it allowed the plaintiff to
amend its pleadings to conform to the evidence adduced at trial. 953 So. 2d at 618.
Moreover, Defendant acknowledges that “the Court may provide leave to amend to
assert specific violations of a ‘law, rule, or regulation’ within the meaning of the WPA.”
Motion at 10. Thus, the Court will grant the Motion and dismiss the Complaint, but
rather than enter judgment in Defendant’s favor will give Plaintiff leave to amend.1
III. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1
Plaintiff should be able to amend her Complaint relatively easily. In her
Response, Plaintiff included her response to an interrogatory propounded by the
Defendant which lists laws, rules, and regulations Plaintiff contends Defendant violated.
See Response at 7 n.1.
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1.
Defendant Microsoft Corporation’s Motion for Judgment on the Pleadings [DE
36] is GRANTED;
2.
Plaintiff’s Complaint [DE 1] is hereby DISMISSED WITHOUT PREJUDICE; and
3.
Plaintiff may file an Amended Complaint on or before October 5, 2012.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 28th day of September, 2012.
Copies provided to counsel of record on CM/ECF.
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