Jackson v. Burger King Corporation
Filing
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ORDER granting 14 Motion to Dismiss or, in the alternative, for Summary Judgment. Plaintiff shall take nothing by his Second Amended Complaint and Judgment shall be entered in favor of Defendant. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 3/29/2016 (bcl) Modified on 3/30/2016 (bcl).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
MARY L. JACKSON,
Plaintiff,
v.
GOLDCO, LLC,
d/b/a BURGER KING,
Defendant.
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CASE NO.: 1:14-CV-119 (LJA)
ORDER
Before the Court is Defendant Goldco, LLC’s (“Goldco”) Motion to Dismiss or, in
the alternative, for Summary Judgment. (Doc. 14.) For the following reasons, Defendant’s
Motion is GRANTED.
BACKGROUND
This action concerns alleged age discrimination against Plaintiff Mary Jackson in
connection with her application for employment at a Burger King in Cairo, Georgia. On or
about September 26, 2013, Plaintiff filed a Charge of Discrimination with the United States
Equal Employment Opportunity Commission (“EEOC”), alleging that Burger King failed to
hire her because of her age. (Doc. 14-3 at 6.) The EEOC subsequently issued Plaintiff a
right-to-sue letter on May 16, 2014. (Id. at 8.) Thereafter, on August 15, 2014, Plaintiff
commenced this action against Burger King Corporation (“BKC”), alleging violations of the
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the “ADEA”). (Doc. 1.)
After commencing the action, Plaintiff was advised that BKC did not own this
particular location and that the subject store was owned and operated by Burger Gulf Coast,
LLC (“Burger Gulf”). (Doc. 11.) Consequently, on October 10, 2014, Plaintiff amended her
complaint (the “First Amended Complaint”), substituting Burger Gulf for BKC. (Doc. 6.)
Burger Gulf did not respond to the First Amended Complaint, and, as a result, Plaintiff filed
a motion for default on February 20, 2015. (Doc. 10.) The Clerk of the Court entered the
default on February 24, 2015, and directed Plaintiff to file a motion for a default judgment
within 21 days. Rather than filing said motion, on March 25, 2015, Plaintiff moved to set
aside the default and permit the filing of a second amended complaint (the “Second
Amended Complaint”). (Doc. 11.)
In the motion to set aside the default, Plaintiff asserted that, following the
substitution of Burger Gulf for BKC, Plaintiff was informed that the information she had
received regarding the owner of the subject store “was inaccurate, and that yet another
entity[,] Goldco LLC[,] was the owner of that Burger King at the time [of the alleged
discrimination].” (Id. at 1.) As such, the Second Amended Complaint sought to substitute
Goldco for Burger Gulf. (Doc. 12.) On April 8, 2015, the Court granted Plaintiff’s motion to
set aside the default and file the Second Amended Complaint. (Doc. 13.) Thereafter, on
April 29, 2015, Goldco timely moved to dismiss the Second Amended Complaint or, in the
alternative, for summary judgment. (Doc. 14.) After receiving an extension from the Court,
Plaintiff filed her Response to Goldco’s Motion on May 20, 2015 (Doc. 17), and Goldco
filed its Reply on July 6, 2015. (Doc. 18.)
In its Motion, Goldco contends that Plaintiff’s claims are untimely because Plaintiff
substituted Goldco after the expiration of the statute of limitations. In response, Plaintiff
contends that the claims asserted in the Second Amended Complaint relate back to the filing
of the original Complaint and are, thus, timely. Although “[a]s a general rule summary
judgment should not be granted until the party opposing the motion has had an adequate
opportunity to conduct discovery,” Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843
(11th Cir. 1989), because “Plaintiff does not object to this court’s consideration [of the
applicability of the relation-back doctrine] . . . based on the limited record before it under
Rule 56,” (Doc. 17 at 1), the Court will construe Goldco’s Motion as one for summary
judgment.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment at
any time. Fed. R. Civ. P. 56(b). “Summary judgment is appropriate if the pleadings,
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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir.
2013). “A genuine issue of material fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury to return a verdict in its favor.” Grimes v.
Miami Dade Cnty., 552 F. App’x 902, 904 (11th Cir. 2014) (citing Chapman v. AI Transp., 229
F.3d 1012, 1023 (11th Cir. 2000)). “An issue of fact is ‘material’ if it is a legal element of the
claim under the applicable substantive law which might affect the outcome of the case.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “It is ‘genuine’ if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965
F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex, 477 U.S. at 323 (1986); Barreto v. Davie
Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009). The movant can meet this burden
by presenting evidence showing there is no genuine dispute of material fact, or by
demonstrating to the district court that the nonmoving party has failed to present evidence
in support of some element of its case on which it bears the ultimate burden of proof. See
Celotex, 477 U.S. at 322-24. Once the movant has met its burden, the nonmoving party is
required “to go beyond the pleadings” and identify “specific facts showing that there is a
genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party “must
do more than summarily deny the allegations or show that there is some metaphysical doubt
as to the material facts.” Matsuhita, 475 U.S. at 586 (citations and internal quotations
omitted). Instead, the nonmovant must point to evidence in the record that would be
admissible at trial. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012)
(noting that hearsay may be considered on a motion for summary judgment only if it “could
be reduced to admissible evidence at trial or reduced to admissible form”) (quotation
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omitted). Such evidence may include affidavits or declarations that are based on personal
knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
On a motion for summary judgment, the Court must view all evidence and factual
inferences drawn therefrom in the light most favorable to the nonmoving party and
determine whether that evidence could reasonably sustain a jury verdict in its favor. See
Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. The Court, however, must grant summary
judgment if there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c).
Local Rule 56 requires that the movant attach to its motion for summary judgment a
separate and concise statement of material facts to which the movant contends there is no
genuine issue to be tried. M.D. Ga. L.R. 56. The non-movant must then respond “to each of
the movant’s numbered material facts.” Id. “All material facts contained in the movant’s
statement which are not specifically controverted by specific citation to particular parts of
materials in the record shall be deemed to have been admitted, unless otherwise
inappropriate.” Id. Here, Plaintiff did not file a response to Goldco’s statement of facts and
the exhibits attached thereto. Thus, Goldco’s statement of material facts are admitted.
The Court, however, “cannot grant a motion for summary judgment based on default
or as a sanction for failure to properly respond.” United States v. Delbridge, No. 1:06-CV-110
(WLS), 2008 WL 1869867, at *3 (M.D. Ga. Feb. 22, 2008) (citing Trustees of Cent. Pension Fund
of Int’l Union of Operating Engineers & Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d
1035, 1040 (11th Cir. 2004)). Instead, the Court must undertake an independent review of
“the evidentiary materials submitted in support of the motion” to ensure that the defendant
has met its burden of demonstrating the absence of a genuine issue of material fact. United
States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101
(11th Cir. 2004); see also Delbridge, 2008 WL 1869867, at *3 (finding that the “Court must
make an independent review of the record,” even if the non-movant fails to respond to the
statement of material facts ). Having established the applicable standards, the Court will now
proceed with reviewing the merits of Goldco’s Motion.
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DISCUSSION
Under the ADEA, a plaintiff must commence an action within 90 days of receiving a
right-to-sue letter from the EEOC. 29 U.S.C. § 626(e); see also Miller v. Georgia, 223 F. App’x
842, 844 (11th Cir. 2007). “Once a defendant contests the issue of whether the complaint
was filed timely, the plaintiffs bear the burden of showing that they have met the
requirement.” Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005) (citing Green v.
Union Foundry Company, 281 F.3d 1229, 1233–34 (11th Cir. 2002)).
Plaintiff commenced this action on August 15, 2014, 91 days after the EEOC mailed
the right-to-sue letter on May 16, 2014. According to the Eleventh Circuit, “statutory
notification is complete only upon actual receipt of the right to sue letter.” Id. at 952.
Because no evidence has been offered as to date on which Plaintiff actually received the
letter, the Court will add three days for delivery of mail. See id. at 953 n.9 (“When the date of
receipt is in dispute, this court has applied a presumption of three days for receipt by mail,
akin to the time period established in Fed. R. Civ. P. 6(e).” (citing Zillyette v. Capital One Fin.
Corp., 179 F.3d 1337, 1340-41 (11th Cir. 1999)). Thus, the statute of limitations expired on
August 17, 2014. As such, Plaintiff’s original Complaint against BKC was timely filed on
August 15, 2014.
Plaintiff, however, did not substitute Goldco as a party until the Second Amended
Complaint was filed on April 8, 2015, approximately 235 days after the expiration of the
limitations period. Thus, whether Plaintiff’s claims against Goldco are barred by the statute
of limitations depends upon whether the Second Amended Complaint relates back to the
filing date of the original Complaint. “Rule 15(c) of the Federal Rules of Civil Procedure
governs when an amended pleading ‘relates back’ to the date of a timely filed original
pleading and is thus itself timely even though it was filed outside an applicable statute of
limitations.” Krupski v. Costa Crociere, 560 U.S. 538, 541 (2010). Pursuant to Rule 15(c)(1)(C),
an amendment that “changes the party or the naming of the party against whom a claim is
asserted” relates back if (i) “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out-or attempted to be set out-in the original
pleading,” Fed. R. Civ. P. 15(c)(1)(B), (C), and, (ii) “within the period provided by Fed. R.
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Civ. P. 4(m) for serving the summons and complaint, the party to be brought in by an
amendment both (1) received notice of the action, such that it would not be prejudiced in
defending on the merits, and (2) knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper party’s identity.” Mendez v.
Jarden Corp., 503 F. App’x 930, 937 (11th Cir. 2013). Under the 2014 edition of the Federal
Rules of Civil Procedure, “Rule 4(m) requires a plaintiff to properly serve the defendant
within 120 days of the plaintiff filing the complaint.” Lepone-Dempsey v. Carroll Cty. Comm’rs,
476 F.3d 1277, 1280-81 (11th Cir. 2007) (citing Fed. R. Civ. P. 4(m)).1 There is not dispute
that the claims asserted against BKC in the original Complaint mirror those asserted against
Goldco in the Second Amended Complaint. (See Docs. 1, 12.) Thus, at issue is whether (1)
Goldco received notice of this action by December 15, 2014,2 and (2) whether it knew or
should have known that, but for a mistake concerning its identity, this action would have
been brought against it.
Goldco contends that the Second Amended Complaint does not relate back to the
filing of the original Complaint because Plaintiff’s mistake was due to a lack of knowledge
concerning the identity of the proper owner of the Burger King at the time of the alleged
discrimination. Goldco further contends that Plaintiff should have known that Goldco was
the proper party because Goldco responded to the EEOC complaint. Contrary to Goldco’s
contention, the Supreme Court has held that “relation back under Rule 15(c)(1)(C) depends
on what the party to be added knew or should have known, not on the amending party’s
knowledge or its timeliness in seeking to amend the pleading.” Krupski, 560 U.S. at 541.
Thus, by focusing on Plaintiff’s knowledge, Goldco “chose the wrong starting point.” Id. at
548. “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known
during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of
filing her original complaint.” Id. (emphasis in original). “The reasonableness of the mistake
is not itself at issue.” Id. at 549. Therefore, the question here “is not whether [Plaintiff] knew
1 Effective December 1, 2015, Rule 4(m) was amended by reducing the time within which to perfect service
from 120 days to 90 days. Fed. R. Civ. P. 4(m). However, as this matter was filed on August 15, 2014, the
2014 Rules apply.
2 Because a 120 days from August 15, 2014 falls on a Saturday, service was required to be perfected by the
following Monday, December 15, 2014. See Fed. R. Civ. P. 6(a)(1)(C).
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or should have known the identity of [Goldco] as the proper defendant, but whether
[Goldco] knew or should have known that it would have been named as a defendant but for
an error.” Id. at 548; see also Lindley v. City of Birmingham, Ala., 515 F. App’x 813, 816 (11th
Cir. 2013) (finding that “the pertinent question [under Rule 15(c)] is whether within the Rule
4(m) period the defendant knew or should have known that it would have been named as a
defendant but for an error”).
It is undisputed that Goldco received actual notice of this lawsuit on January 22,
2015. (Doc. 14-2 at ¶ 5.) Goldco thus contends that because it did not have knowledge of
the suit within the 120-day period provided under Rule 4(m) – by December 15, 2014 – the
Second Amended Complaint does not relate back under Rule 15(c). In response, Plaintiff
contends that Goldco had constructive knowledge of this suit through its participation in the
EEOC proceedings. The Eleventh Circuit, however, has held that “[k]nowledge of the
underlying events that establish a claim is not the equivalent to knowledge of the action.”
Bloom v. Alvereze, 498 F. App’x 867, 874 (11th Cir. 2012); see also Morel v. DaimlerChrysler AG,
565 F.3d 20, 26 (1st Cir. 2009) (finding that “notice requires knowledge of the filing of suit,
not simply knowledge of the incident giving rise to the cause of action”). In other words,
“the notice received must be more than notice of the event that gave rise to the cause of
action; it must be notice that the plaintiff has instituted the action.” Singletary v. Pennsylvania
Dep’t of Corr., 266 F.3d 186, 195 (3d Cir. 2001).
Receiving a right-to-sue letter is not the equivalent of receiving notice of the
institution of an action because a right-to-sue letter in no way guarantees that a prospective
plaintiff will commence an action. In fact, because the right-to-sue letter was mailed to
Goldco (Doc. 14-3 at 8) and because Goldco did not receive notice of this action within 120
days after the 90-day limitations period expired, Goldco reasonably could have assumed that
Plaintiff did not intend to bring suit against it. See Hodge v. Orlando Utilities Comm’n, No. 09CV-1059, 2009 WL 5067758, at *7 (M.D. Fla. Dec. 15, 2009). This is precisely why Rule
15(c) requires notice of the action within the time provided under Rule 4(m). Otherwise, a
prospective defendant’s interest in repose would be eviscerated. As explained by the
Supreme Court in Krupski:
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A prospective defendant who legitimately believed that the limitations period
had passed without any attempt to sue him has a strong interest in repose. But
repose would be a windfall for a prospective defendant who understood, or
who should have understood, that he escaped suit during the limitations
period only because the plaintiff misunderstood a crucial fact about his
identity.
560 U.S. at 550. Thus, the mere fact that Goldco participated in the EEOC proceedings,
standing alone, does not impute notice of the existence of this action. See Polk v. Sears,
Roebuck & Co., No. 10-CV-0636, 2012 WL 671679, at *3 (S.D. Ala. Feb. 28, 2012) (finding
that despite the fact that “Sears had knowledge that plaintiff ha[d] asserted claims against it
to the EEOC,” without more, plaintiff’s claims against Sears did not relate back); see also
Afanador v. U.S. Postal Serv., 976 F.2d 724 (1st Cir. 1992) (“Receipt of appellants’ letter
demanding administrative resolution of their claims was not notice that appellants had
instituted an action, the only relevant notice under Rule 15(c).”); Cooper v. U.S. Postal Serv.,
740 F.2d 714, 717 (9th Cir. 1984) (holding that under Rule 15(c) “the filing of an
administrative claim does not impute notice of ‘the institution of the action’”), overruled on
other grounds, Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89 (1990).
Although courts have imputed notice where the new defendant and the originally
named defendant share an “identity of interest” or the same legal counsel, Plaintiff has made
no such showing here. “The ‘identity of interest’ method of imputing Rule 15(c)(3) notice to
a newly named party . . . generally means that the parties are so closely related in their
business operations or other activities that the institution of an action against one serves to
provide notice of the litigation to the other.” Singletary , 266 F.3d at 197 (citation omitted); see
also Pugh v. Kobelco Const. Machinery America, LLC, 2009 WL 2486042, *2 (M.D. Ala. Aug. 12,
2009) (finding that “notice of a suit may be imputed where the new defendant and the
originally named defendant share some identity of interest, or where the parties are so
interrelated in their business operations that notice of the institution of an action against one
would serve as notice to the other.”). This “principle is often applied where the original and
added parties are a parent corporation and its wholly owned subsidiary, two related
corporations whose officers, directors, or shareholders are substantially identical and who
have similar names or share office space, past and present forms of the same enterprise, or
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co-executors of an estate.” Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 103 (1st Cir. 1979);
see also Polk, 2012 WL 671679, at *3 (“[W]here a complaint naming a corporation as the
defendant is later amended to add the corporation’s owner, e.g., Itel Capital Corp. v. Cups Coal
Co., 707 F.2d 1253, 1258 (11th Cir. 1983), or parent corporation, e.g., Marks v. Prattco, Inc.,
607 F.2d 1153 (5th Cir. 1979), the added party is deemed to have had notice in light of its
‘identity of interests’ or close association with the original defendant.”).
Related to the “identity of interest” method of imputing notice is the shared attorney
method, pursuant to which courts impute notice “to the new party through shared counsel.”
See Pugh, 2009 WL 2486042, at *2 (citing Pompey v. Lumkin, 321 F. Supp. 2d 1254, 1263 (M.D.
Ala. 2004)). This method of imputing notice “is based on the notion that, when an originally
named party and the party who is sought to be added are represented by the same attorney,
the attorney is likely to have communicated to the latter party that he may very well be
joined in the action.” Singletary, 266 F.3d at 196. “One could view the shared attorney
method as simply a special case of, or as providing evidence for, the identity of interest
method, in that sharing an attorney with an originally named party demonstrates that you
share an identity of interest with that party.” Id. at 197.
Plaintiff has failed to demonstrate an identity of interest between BKC and Goldco
such that BKC’s knowledge of this suit should be imputed to Goldco. Goldco and BKC are
entirely separate corporate entities that do not share the same office space, corporate
officers, shareholders, or legal counsel. The relationship between the two companies is
limited to that of a franchisor and franchisee, which is too attenuated to find that notice of
the institution of an action against one would serve as notice to the other. Accordingly,
because Plaintiff has failed to establish that Goldco had notice or knowledge of this action
by December 15, 2014, the Second Amended Complaint does not relate back to the filing of
the original Complaint. See Mendez, 503 F. App’x at 937 (finding that claims did not relate
back where the new defendant did not receive notice of the action within 120 days of the
filing of the complaint). As such, Plaintiff’s claims against Goldco are time-barred.
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CONCLUSION
In light of the forgoing, Goldco’s Motion to Dismiss or, in the alternative, for
Summary Judgment (Doc. 14) is GRANTED. It is hereby ORDERED and ADJUDGED
that Plaintiff shall take nothing by his Second Amended Complaint (Doc. 12), and
JUDGMENT shall be entered in favor of Defendant.
SO ORDERED, this 29th day of March, 2016.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT
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