May v. Tucker et al

Filing 50

ORDER dismissing as moot 9 Motion to Intervene; denying 14 Motion to Dismiss; denying 15 Motion to Remand; denying 14 Motion for Judgment on the Pleadings. Darlene Waters and Twin Oaks are hereby ORDERED to file answers to the Complaint w ithin fourteen (14) days from the date of this Order. Because the Court's ruling was recorded only at the second docket entry, the Clerk is DIRECTED to update the original docket entry (dkt. no. 38) to reflect the granting of this Motion. Signed by Chief Judge Lisa G. Wood on 1/22/2016. (ca)

3 the Sniteb 'tate flitritt Court
for the boutbern 1Ditritt of deoria
36runftick flibiiou
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CRISTAL MAY,

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Plaintiff,

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V.

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ALAN DAVID TUCKER; ALAN DAVID
TUCKER ESQ., P.C.; DARLENE
WATERS; WILLIAM L. "DUB"
WATERS; and TWIN OAKS
RESTAURANT, INC.,
Defendants.

CV 215-053

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ORDER

This matter is before the Court on a Motion to Dismiss and
Motion for Judgment on the Pleadings filed by Defendants Alan
David Tucker ("Tucker") and Alan David Tucker Esq., P.C.
(collectively, the "Tucker Defendants") . Dkt. No.

14.1 Also

before the Court is a Motion to Remand made by Plaintiff Cristal
May ("Plaintiff") . Dkt. No.

15.

For the reasons set forth

herein, the Tucker Defendants' Motion to Dismiss and Motion for

1

While appearing in Plaintiff's Complaint and upon the docket of this
case as "Alan David Tucker PC," the pleadings reflect that the actual
name of this entity is "Alan David Tucker Esq., P.C." See Dkt. No.
14-1, p. 1 n.1. The Clerk of Court is thus DIRECTED to correct the
name of this Defendant on the docket.
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Judgment on the Pleadings (dkt. no. 14) are DENIED.

Plaintiff's

Motion to Remand (dkt. no. 15) is also DENIED.'
FACTUAL BACKGROUND
From approximately November 2013 until February 14, 2014,
Plaintiff worked as a food preparer and waitress at Defendant
Twin Oaks Restaurant, Inc. ("Twin Oaks") . Dkt. No. 1-1
("Compi."), ¶ 8. At all relevant times, Twin Oaks was owned and
operated by Defendants Darlene Waters ("Darlene Waters") and her
husband, William L. "Dub" Waters ("William Waters") . Id. at ¶
13. During the course of her employment, Plaintiff began to
believe that Darlene Waters and William Waters were managing
Twin Oaks in a racially discriminatory manner. Id. at ¶ 19.
Plaintiff voiced these concerns to and sought legal advice
from Tucker, a regular patron of Twin Oaks and licensed attorney
practicing through Alan David Tucker Esq., P.C. Id. at 191 9-10,
20, 24-26. According to Plaintiff, Tucker promptly communicated
her complaints to William Waters. Id. at ¶ 27. When Plaintiff
arrived at Twin Oaks on her next scheduled work day—February 14,
2

The docket of this case shows that two additional motions remain
pending: a Motion to Intervene (dkt. no. 9) and a Motion to Withdraw
as Attorney (dkt. no. 38), both filed by Country Mutual Insurance
Company. As Country Mutual Insurance Company has been dismissed from
this action pursuant to a Court Order dated October 7, 2015, dkt. no.
39, the Motion to Intervene (dkt. no. 9) is hereby DISMISSED as moot.
Further, the Motion to Withdraw as Attorney at docket entry number 38
was refiled at docket entry number 44, and the Court granted this
Motion on December 17, 2015, dkt. no. 46. Because the Court's ruling
was recorded only at the second docket entry, the Clerk of Court is
DIRECTED to update the original docket entry (dkt. no. 38) to reflect
the granting of this Motion.
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2

2014—William Waters informed her that her employment at the
restaurant was terminated. Id. at ¶ 28.
PROCEDURAL BACKGROUND
On March 20, 2015, Plaintiff filed suit against Twin Oaks,
Darlene Waters, William Waters (collectively, the "Waters
Defendants"), and the Tucker Defendants in the Superior Court of
Glynn County. See generally id. In count one of the Complaint,
Plaintiff alleges retaliation under the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII") . Id. at IT
33-39. Plaintiff's pleadings under Title VII state, in
pertinent part:
All conditions precedent to jurisdiction under the
Civil Rights Act of 1964 have occurred, including
[Plaintiff's] exhaustion of all applicable
administrative remedies, including specifically, her
filing of a timely charge of discrimination with the
U.S. Equal Employment Opportunity Commission (EEOC).
See attached, Exhibit A. [Plaintiff] has timely filed
this Complaint within ninety (90) days of receipt of
the right-to-sue letter delivered to her by the EEOC.
See attached Exhibit B.
Id. at ¶ 37. Although citing to the attached EEOC materials,
the record reflects that Plaintiff did not, in fact, file these
attachments along with the Complaint in the state court. See
generally id.; see also Dkt. No. 24, Exs. A-B.
Additionally, Plaintiff's Complaint sets forth the
following claims for relief: retaliation in violation of 42
U.S.C. § 1981, compl., IT 40-45 (count two); conspiracy to

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violate civil rights, id. at 9191 46 - 50 (count three); breach of
fiduciary responsibility, id. at 191 51-57 (count four); and
interference with business and employment relationship, id. at
¶91 58-64 (count five) . Plaintiff claims that she is entitled to
a reinstatement of her employment and other equitable relief.
Id. at ¶91 a-c. Plaintiff also seeks compensatory and punitive
damages, attorneys' fees, expenses of litigation, and costs from
Defendants. Id. at ¶91 d-h.
On April 20, 2015, William Waters filed an Answer to the
Complaint. Dkt. No. 1-2. On April 22, 2015, all of the
Defendants jointly filed a Notice of Removal to this Court, on
the basis that the suit involves several federal causes of
action. Dkt. No. 1,

191 6-8. With the Notice of Removal, the

Defendants filed copies of Plaintiff's Complaint and William
Waters' Answer. See Compl.; Dkt. No. 1-2. The Tucker
Defendants also filed a Motion to Dismiss and Motion for
Judgment on the Pleadings and supporting brief, as well as an
Answer, on that date. Dkt. Nos. 1-3 to -5.
Upon removal, the Court ordered that the parties refile in
this Court any pending motions and responses previously filed in
the state court. Dkt. No. 3. Accordingly, on April 23, 2015,
the Tucker Defendants submitted a Statement of Motions Pending
identifying only their Motion to Dismiss and Motion for Judgment
on the Pleadings, dkt. no. 5, and later filed copies of their
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Motions and supporting brief, dkt. no. 14, upon the docket of
this case. Twin Oaks and Darlene Waters filed a similar
Statement of Motions Pending on April 23, 2015, though adding in
their Statement an assertion that they adopted the Tucker
Defendants' Motions as their own. Dkt. No. 6. William Waters
filed an Adoption of Motion on May 12, 2015, which also purports
to assume the Tucker Defendants' arguments. Dkt. No. 12. The
Court entered an Informative Notice indicating that William
Waters' Adoption of Motion was deficient and that any motion to
this effect pending upon removal would need to be refiled, dkt.
no. 13, but William Waters did not make any further submissions
in this regard.
Plaintiff responded to the Tucker Defendants' Motion to
Dismiss and Motion for Judgment on the Pleadings on June 8,
2015, dkt. no. 23, to which the Tucker Defendants then filed a
Reply, dkt. no. 33. Additionally, Plaintiff filed a Motion to
Remand to the state court on May 22, 2015, dkt. no. 15, and
later submitted a Supplemental Brief in support thereof, dkt.
27. The Tucker Defendants responded in opposition to
Plaintiff's Motion on June 11, 2015, dkt. no. 28, and Plaintiff
subsequently filed a Reply, dkt. no. 31. The Tucker Defendants'
Motions (dkt. no. 14) and Plaintiff's Motion (dkt. no. 15) are
now before the Court for review.

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DISCUSSION

Although the Tucker Defendants' Motion to Dismiss and
Motion for Judgment on the Pleadings (dkt. no. 14) predate the
filing of Plaintiff's Motion to Remand (dkt. no. 15), the
Court's ruling on the issue of remand will dictate whether the
Court should decide the pending dispositive motions or leave
them for resolution in state court. The Court thus addresses
Plaintiff's Motion to Remand before turning to the remaining
motions.
I.

Plaintiff's Motion to Remand(Dkt. No. 15)

Plaintiff's Motion asks that the Court remand this action
to the state court based on alleged deficiencies in the
Defendants' joint Notice of Removal. Dkt. No. 15. Plaintiff
quotes Defendants' representation in the Notice of Removal that
they had "[a]ttached . . . all documents filed in the Superior
Court [a]ction." Id. at p. 5 (alterations in original) (quoting
Dkt. No. 2, p. 2) . Plaintiff points out, however, that the
documents filed in the state court and served upon Defendants
included proof of service of process and three orders of that
court, which were not attached to Defendants' Notice, id., and
which Plaintiff submits in support of her Motion, id. at Exs. A-

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C. 3 Though recognizing that the law "does not require remand
where the notice of removal lacks necessary documents,"
Plaintiff emphasizes that the Court nevertheless has discretion
to close its doors to Defendants on this basis. Id. at p. 6
(emphasis in original) (citing Covington v. Indemn. Ins. Co. of
N. Am., 251 F.3d 930 (5th Cir. 1958)).
Although the Tucker Defendants filed a Notice of Intent to
file a Response to Plaintiff's Notion on May 29, 2015, dkt. no.
20, Plaintiff's Supplemental Brief, filed June 10, 2015, notes
that these Defendants ultimately did not do so prior to the
response deadline, dkt. no. 27. Plaintiff's Supplemental Brief
thus requests that the Court grant her Motion for this
additional reason. Dkt. No. 27,

p. 1.

Nevertheless, the Tucker Defendants filed their Response
the next day—on June 11, 2015—urging the Court to deny
Plaintiff's Motion for a remand. Dkt. No. 28. As to the
tardiness of their filing, the Tucker Defendants cite
administrative error in calculating the response deadline. Id.
at pp. 3-4. Additionally, the Defendants emphasize that "[t]he
only documents that Defendants inadvertently did not file with
the Court along with their [N]otice of [R]emoval consist of
notices of service and two Superior Court orders reassigning the
While Plaintiff represents that three orders were entered in the
state court, dkt. no. 15, p. 5, the attachments to her Motion evidence
the existence of only two state-court orders, id. at Exs. B-C.
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case to other sitting judges due to recusal." Id. at p. 2
(citing Dkt. No. 15, Exs. A-C. The Tucker Defendants argue that
any defect owing to the state-court documents not included upon
removal is procedural rather than jurisdictional in nature and
can be cured by supplying the missing documents at a later time.
Id. at p. 3 (citing Hooker v. Sec'y, Dep't of Veterans Affairs,
599 F. App'x 857, 859 (11th Cir. 2014)) . Because both Plaintiff
and the Tucker Defendants attach the missing documents to their
briefs, these Defendants maintain that any technical error has
been remedied and does not warrant remand. Id. at p. 4 & Ex. A.
28 U.S.C. § 1441(a) ("Section 1441(a)") provides that an
action filed in state court may be removed to federal district
court if the case could have been brought in federal district
court originally. See 28 U.S.C. § 1441(a) (requiring that the
case be one "of which the district courts of the United States
have original jurisdiction") . A federal district court has
original jurisdiction over cases where, as here, a cause of
action "aris[es] under the Constitution, laws, or treaties of
the United States." See 28 U.S.C. § 1331. Section 1441(a)
states that defendants seeking to remove an action on this basis
must file in the district court "a notice of removal . .
containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and

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orders served upon such . . . defendants in such action." 28
U.S.C. § 1446(a).
Upon removal, 28 U.S.C. § 1447(c) "implicitly recognizes
two bases upon which a district court may . . . order a remand:
when there is (1) a lack of subject matter jurisdiction or (2) a
defect other than a lack of subject matter jurisdiction."
Hernandez v. Seminole Cty., 334 F.3d 1233, 1236-37 (11th Cir.
2003) (quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1252-53
(11th Cir. 1999)).

Relevant to this inquiry is that the

removing party bears the burden of establishing that the case
was properly removed. Thalacker v. Confessions Int'l, LLC, No.
1:06CV2685 WSD, 2007 WL 521902, at *2 (N.D. Ga. Feb. 15, 2007)
(citing Lampkin v. Media Gen., Inc., 302 F. Supp. 2d 1293, 1294
(M.D. Ala. 2004)). Additionally,

"[t]he failure to include all

state court pleadings and process with the notice of removal is
procedurally incorrect but is not a jurisdictional defect."
This statute states, in relevant part:
A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal
under section 1446(a) . If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded. An order
remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a
result of the removal.
28 U.S.C. § 1447(c).

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Hooker, 599 F. App'x at 860 (quoting Cook v. Randolph Cty., 573
F.3d 1143, 1150 (11th Cir. 2009))

("[M]ere modal or procedural

defects are not jurisdictional . . . . and are completely
without effect upon the removal, if the case is in its nature
removable." (omission in original) (quoting Covington, 251 F.3d
at 933)) . The parties may supply any documents missing from the
removal notice at a later time. Id. (citing Usatorres v. Marina
Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 (11th Cir.
1985), and Covington, 251 F.2d at 933).
As an initial matter, the Court declines to remand on the
basis that the Tucker Defendants filed their Response three days
after the response deadline. Their slight delay in this
instance does not, by itself, justify ignoring their Response
and granting Plaintiff's remand Motion as unopposed.
Nor does the Defendants' omission of the process papers and
state-court orders from their Notice of Removal warrant remand.
While perhaps the failure to include these documents was a
defect in the removal procedure, this defect was relatively
minor and was cured by the eventual filing of the documents upon
the docket of this case. See Walton v. Bayer Corp., 643 F.3d
994, 998 (7th Cir. 2011) (remand not warranted where the
defendants neglected to file summonses with their removal papers
but submitted the same after the removal deadline); Countryman
v. Farmers Ins. Exchange, 639 F.3d 1270, 1273 (10th Cir. 2011)
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("The omission of a summons from Defendants' joint notice of
removal was an inadvertent, minor procedural defect that was
curable, either before or after expiration of the thirty-day
removal period.")
Moreover, Plaintiff does not contend—and nothing in the
record suggests—that the late submission of these materials is
harmful to her, this Court, the state court, or the resolution
of any matter at issue in this litigation. See Walton, 643 F.3d
at 998 (no remand where the delayed filing did not cause harm);
Countryman, 639 F.3d at 1273 (no remand where the omission
neither prejudiced the plaintiff nor materially impaired the
district court's ability to proceed with the action). For these
reasons, any deficiency in Defendants' filings at the time of
removal does not support a remand of this case. Plaintiff's
Motion to this end is, therefore,

DENIED.

II. Tucker Defendants' Motion to Dismiss (Dkt. No. 14)
In their Motion to Dismiss, filed with the Notice of
Removal on April 22, 2015, and later refiled in this Court, the
Tucker Defendants request a dismissal of Plaintiff's Title VII
claims in count one of the Complaint. Dkt. Nos. 14-1 to -2; see
also Dkt. Nos. 1-3 to -4. Specifically, the Tucker Defendants
contend that the Court lacks subject-matter jurisdiction over
Plaintiff's Title VII claims for three reasons: (1) Plaintiff
failed to exhaust her administrative remedies against these
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Defendants; (2) the Complaint fails to suggest that Alan David
Tucker Esq., P.C. meets Title VII'S numerosity requirement; and
(3) Title VII does not impose liability on individuals such as
Tucker. Dkt. No. 14-2, pp. 7-10.
In her Response, Plaintiff maintains that the Court should
deny the Tucker Defendants' Motion to Dismiss on the grounds
that it was improperly filed after the filing of their original
Answer. Dkt. No. 23, p. 4. Plaintiff explains that the Tucker
Defendants served and filed an Answer in the state-court action
on April 15, 2015, though the Defendants did not include it in
the Notice of Removal on April 22, 2015, and instead submitted a
different Answer dated that same day. Id. at p. 2 & n.1.
Plaintiff attaches to her Response a copy of the Tucker
Defendants' original Answer containing the signature of their
counsel and a certificate of service upon Plaintiff. Id. at Ex.
A; Dkt. No. 30-1. In any event, Plaintiff argues that dismissal
of her Title VII claims is improper, because Plaintiff seeks to
hold only Twin Oaks, and not the Tucker Defendants, liable under
Title VII. Dkt. No. 23, pp. 1, 6-7.
Federal Rule of Civil Procedure 8(a) requires that a
plaintiff's complaint contain both "a short and plain statement
Plaintiff notes that she has exhausted her administrative remedies
with respect to Twin Oaks, dkt. no. 23, p. 7, and submits copies of
her EEOC charge against Twin Oaks for racial discrimination and
retaliation in connection with the events alleged in this case, dkt.
no. 24, Ex. A, as well as the EEOC's Notice of Right to Sue on this
charge, id. at Ex. B.
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of the grounds for the court's jurisdiction" and "a short and
plain statement of the claim showing that the pleader is
entitled to relief. " , Fed R Civ. P 8(a)(1)-(2). Accordingly,
a responding party may defend on grounds of a "lack of subjectmatter jurisdiction" or a "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b) (1), (6) ("Rule
12(b)(1)" and "Rule 12(b)(6)," respectively). These defenses
"must be asserted in the responsive pleading if one is required"
or in a motion "made before pleading if a responsive pleading is
allowed." Fed. R. Civ. P. 12(b).
In the case at bar, the Tucker Defendants forfeited the
opportunity to raise a jurisdictional defense by motion. A
responsive pleading was not only allowed but required, and,
accordingly, these Defendants were required to raise the defense
of lack of subject-matter jurisdiction in an answer or in a preanswer motion. Significantly, Plaintiff shows that the Tucker
Defendants served and filed an Answer in the state court on
April 15, 2015, see dkt. no. 23,

p. 2 & Ex. A; dkt. no. 30—an

Answer that sets forth a failure-to-state-a-claim defense but is
silent as to subject-matter jurisdiction, dkt. no. 23, Ex. A.
Defendants do not rebut this showing, instead emphasizing
that the Answer filed along with the Notice of Removal and the
instant Motion on April 22, 2015, is timestamped just minutes
after the filing of those documents. See Dkt. No. 33, p. 2.
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However, the Answer filed on April 22, 2015, was not the Tucker
Defendants' first responsive pleading and is an entirely
different document than their original Answer. Compare Dkt. No.
1-5, with Dkt. No. 23, Ex. A.
Because it appears that the Tucker Defendants originally
filed an Answer on April 15, 2015, their attempt to assert a
jurisdictional defense in a Motion dated April 22, 2015, is
ineffective. See Leonard v. Enterprise Rent A Car, 279 F.3d
967, 971 n.6 (11th Cir. 2002) ("After answering the complaint,
the defendants filed Rule 12(b) (6) motions to dismiss the
plaintiffs' claims. Under Rule 12(b), these motions were a
nullity; by filing an answer, the defendants had eschewed the
option of asserting by motion that the complaint failed to state
a claim for relief.")

The Tucker Defendants' Motion to Dismiss

must, therefore, be DENIED.
However, even in the absence of a proper motion, the Court
considers the Tucker Defendants' arguments pursuant to its
obligation to resolve jurisdictional issues sua sponte. See
Fed. R. Civ. P. 12(h) (3) (a court must dismiss an action "[i]f
the court determines at any time that it lacks subject-matter
jurisdiction" (emphasis added)); BellSouth Telecomms., Inc. v.
MClmetro Access Transmission Servs., Inc., 317 F.3d 1270, 1297
n.17 (11th Cir. 2003) (Tjoflat, J., dissenting) ("If the parties
do not raise the question of lack of jurisdiction, it is the
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duty of the federal court to determine the matter sua sponte."
(emphasis omitted)) . The Defendants' arguments regarding
subject-matter jurisdiction relate entirely to Plaintiff's Title
VII claims, see dkt. no. 14-2, pp. 7-10, yet Plaintiff expressly
states in her Response that the Title VII claim is directed
toward only Twin Oaks, not these Defendants, see dkt. no. 23,
pp. 6-7. Based on Plaintiff's representation, the Tucker
Defendants' arguments are moot, as there are no Title VII claims
against them that could possibly present jurisdictional issues.
III. Tucker Defendants' Motion for Judgment on the Pleadings
.(Dkt. No. 14)

The Tucker Defendants also seek judgment on the pleadings
in their favor on Plaintiff's claims for retaliation (counts one
and two), conspiracy (count three), and tortious interference
with business and employment relationship (count five), based on
their alleged lack of involvement in Plaintiff's employment or
termination. Dkt. No. 14-2, pp. 10-16. Plaintiff counters that
the Tucker Defendants' Motion should be denied as meritless.
Dkt. No. 23, pp. 7-17.
A defendant may challenge the legal sufficiency of a
complaint in a motion for judgment on the pleadings filed
"[a]fter the pleadings are closed—but early enough not to delay
trial." Fed. R. Civ. P. 12(c) ("Rule 12(c)"). "Pleadings are
considered 'closed' when all defendants have filed answers to

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the complaint." Jordan v. Def. Fin. & Accounting Servs., No.
8:14-CV-958-T-33TGW, 2014 WL 3887748, at *1 (M.D. Fla. Aug. 7,
2014) (alteration in original) (quoting Gelsomino v. Horizon
Unlimited, Inc., No. 07-80697, 2008 U.S. Dist. LEXIS 68907, at
*6 n.3, 2008 WL 4194842 (S.D. Fla. Sept. 9, 2008)).
The Tucker Defendants' Motion is premature. As of the date
of this Order, Darlene Waters and Twin Oaks still have not filed
a responsive pleading. As the Tucker Defendants filed the
instant Motion long before the close of the pleading period, the
Motion is DENIED as improper at this time.
IV. The Waters Defendants' Filings Adopting the Tucker
Defendants' Arguments (Dkt. Nos. 6, 12)

Twin Oaks and Darlene Waters' Statement of Motions Pending,
filed April 23, 2015, purports to adopt the Tucker Defendants'
Motion to Dismiss and Motion for Judgment on the Pleadings.
Dkt. No. 6. William Waters makes a similar assertion in his
Adoption of Motion dated May 12, 2015. Dkt. No. 12.
A. Dismissal

Rule 12(b) explicitly states that a defendant must raise
the defense of lack of subject-matter jurisdiction "in the
responsive pleading if one is required" or in a motion "made
before pleading if a responsive pleading is allowed." Fed. R.
Civ. P. 12(b). Additionally, Federal Rule of Civil Procedure
7(b) (1) makes clear that "[a] request for a court order must be

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made by motion." Fed. R. Civ. P. 7(b)(1). This Court's Order
upon removal and Informative Notice to William Waters further
stressed the importance of refiling any such request pending in
the state court as a motion in this case. See Dkt. Nos. 3, 13.
Despite these clear and unequivocal instructions, the
Waters Defendants have not properly filed a motion to dismiss
with this Court. Instead, they have filed documents entitled,
"Statement of Motions Pending" (dkt. no. 6) and "Adoption of
Motion" (dkt. no. 12), in which they purport to adopt the
jurisdictional defense and request for dismissal asserted in a
motion made by other Defendants. The Waters Defendants'
noncompliance with the procedures for raising these matters is
especially significant here, as Plaintiff has responded only to
the Tucker Defendants' arguments for their own dismissal and
thus has had no opportunity to respond to any grounds for
dismissal of the Waters Defendants. See Dkt. No. 23, pp. 4-7.
Even if William Waters had properly filed a motion to
dismiss in place of his Adoption of Motion, the dismissal motion
would be due to be denied. Because the record reflects that
William Waters filed an Answer to Plaintiff's Complaint on April
20, 2015, dkt. no. 1-2, he could not later move to dismiss the
Complaint on jurisdictional grounds, see Fed. R. Civ. P. 12(b).
By contrast, Twin Oaks and Darlene Waters had not filed an
answer at the time of filing their Statement of Motions Pending,
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and, therefore, could have raised a jurisdictional defense by
motion at that time. Although Twin Oaks and Darlene Waters
still have not filed an answer in this action, the time for
making such motion has long since passed. See Fed. R. Civ. P.
12(a) (1) (A) (defendant must serve an answer within twenty-one
days of receiving service or, if waiving service, within sixty
days after the request for waiver was sent); Fed. R. Civ. P.
12(b) (motion to dismiss for lack of subject-matter jurisdiction
must be raised before the filing of an answer) . However,
because Darlene Waters and Twin Oaks apparently have proceeded
under the belief that their obligation to file an answer was
contingent on this Court's ruling on dismissal, see Fed. R. Civ.
P. 12(a) (4), the Court will allow them fourteen (14) days from
the date of this Order to file such responsive pleading.

Notwithstanding the Waters Defendants' failure to properly
move for dismissal on jurisdictional grounds, the Court takes up
the issue of subject-matter jurisdiction sua sponte. See Fed.
R. Civ. P. 12(h) (3); BellSouth Telecomms., Inc., 317 F.3d at
1297 n.17. Among the arguments of the parties is that this
Court lacks subject-matter jurisdiction over Plaintiff's Title
VII claims based on an alleged (1) failure to exhaust
administrative remedies, (2) failure to meet the numerosity
requirement, and (3) improper assertion of liability against an
individual. See Dkt. No. 14-1, pp. 7-10; see also Dkt. Nos. 6,
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12. As Plaintiff has represented that the Title VII claim is
against only Twin Oaks, dkt. no. 23,

P. 1, the Court limits its

consideration of subject-matter jurisdiction to this Defendant.
The Court finds no reason to dismiss the Title VII claim
based on the jurisdictional prerequisite of exhaustion. Chanda
v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000) ("The
filing of an administrative complaint with the EEOC is
ordinarily a jurisdictional prerequisite to a Title VII
action.") . Plaintiff alleges in the Complaint that she has
"exhaust[ed] . . . all applicable administrative remedies,
including specifically, [the] filing of a timely charge of
discrimination with the U.S. Equal Employment Opportunity
Commission (EEOC)" and "receipt of [a] right-to-sue letter
delivered to her by the EEOC." Compl., ¶ 37 (citations
omitted) . Although Plaintiff's Complaint references an attached
EEOC charge and right-to-sue letter but does not, in fact,
include any attachments, Plaintiff has since filed these
documents with the Court. See Dkt. No. 24, Exs. A- B; see also
Dubisar-Dewberry v. Folmar, 883 F. Supp. 648, 651 (M.D. Ala.
1995) (consideration of an EEOC charge of discrimination that is
referenced in the complaint, but not attached thereto, does not
convert a ruling on dismissal into one for summary judgment
(citing Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994),
and Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n.3 (1st
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Cir. 1991))); Kearney Const. Co., LLC v. Bank of Am. Corp., No.
809-CV-1912-T-33TBM, 2010 WL 1141578, at *4 (M.D. Fla. Mar. 23,
2010) (same (citing Darby v. S.B. Ballard Const. Co., No. 3:05CV-199-J-32-MCR, 2005 WL 2077299, at *4 n.5 (M.D. Fla. Aug. 26,
2005))). Because Plaintiff's Title VII claim against Twin Oaks
relates to the same allegations in the EEOC charge, and the
right-to-sue letter is based on that charge, Plaintiff
sufficiently demonstrates satisfaction of this administrative
prerequisite to suit.
Nor does the numerosity requirement under Title VII—which
states that an employer must meet a certain minimum number of
employees for Title VII to apply—provide jurisdictional grounds
for dismissal. see Arbaugh v. Y&H Corp., 546 U.S. 500, 516
(2006) ("[W]e hold that the threshold number of employees for
application of Title VII is an element of a plaintiff's claim
for relief, not a jurisdictional issue.") . Finally, that Title
VII is inapplicable to individuals has no bearing on the claim
against Twin Oaks as a company. Thus, the Court finds, at this
stage, that there are no jurisdictional issues precluding
Plaintiff from proceeding with her Title VII claim against Twin
Oaks in this Court.
B. Judgment on the Pleadings

To the extent that the Waters Defendants seek to adopt the
Tucker Defendants' Motion for Judgment on the Pleadings, see
AO 72A
(Rev. 8/82)

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dkt. nos. 6, 12, their attempt to do so is ineffective for the
reasons discussed with regard to dismissal. See Fed. R. Civ. P.
12(c) ("[A] party may move for judgment on the pleadings."
(emphasis added)); see also Fed. R. Civ. P. 7(b) ("A request for
a court order must be made by motion." (emphasis added)). Even
if the Waters Defendants had properly moved the Court for
judgment on the pleadings, any such motion would be subject to
denial as premature. See Fed. R. Civ. P. 12(c) (motion for
judgment on the pleadings must be filed "[a]fter the pleadings
are closed")
CONCLUSION

Based on the foregoing, the Tucker Defendants' Motion to
Dismiss and Motion for Judgment on the Pleadings (dkt. no. 14)
are DENIED.
DENIED.

Plaintiff's Motion to Remand (dkt. no. 15) is also

Darlene Waters and Twin Oaks are hereby ORDERED to file

answers to the Complaint within fourteen (14) days from the date
of this Order.

SO ORDERED,

this 22 day of January, 2016.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

A0 72A
(Rev. 8/82)

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