Kennard et al v. Another Adventure Day Care, LLC

Filing 59

ORDERED that plaintiff's are directed to file, within twenty-one days from the date of this Order, a second amended complaint containing all facts and claims alleged by both parties. In the interim, the Court will Hold in Abeyance Defendant' ;s Motions for Summary Judgment. Defendant shall have thirty days from the date plaintiff's file their second amended complaint to re-file any motion for summary judgment. The Clerk of Court is directed to terminate defendant's pending Motions for Summary Judgment re 36 , 37 . Signed by Judge William T. Moore, Jr on 9/30/2015. (loh)

IN THE UNITED STATES DISTRICT COURT FOR
.,
THE SOUTHERN DISTRICT OF GEORGIA U.
SAVANNAH DIVISION

SARAH
KENNARD
FILCHER,

and

r

t

FiLED
'

SEP 30 lOIS

TONI)

SO.DS F. Ur GA

Plaintiffs,

CASE NO. CV414-139
ANOTHER ADVENTURE DAY CARE,
LLC,
Defendant.
ORDER

Before the Court are Defendant's Motion for Summary
Judgment as to Causes of Action Alleged by Plaintiff Toni
Filcher (Doc. 36) and Motion for Summary Judgment as to
Causes of Action Alleged by Sarah Kennard (Doc. 37).
Plaintiffs have responded in opposition to both motions.
(Doc. 36; Doc. 37.) While reviewing Defendant's motions,
however, this Court became increasingly confused as to the
various claims alleged by Plaintiffs.
It is somewhat unclear from the initial complaint what
claims are being brought by each respective Plaintiff. The
initial complaint alleges facts unique to each Plaintiff
and then list three substantive causes of action. In Count
One, Plaintiffs allege that Plaintiff Kennard suffered
damages "as a result of Defendant's discriminatory and

retaliatory employment practices" in violation of Title
VII. (Doc. 1 ¶ 29.) Count Two alleges that Plaintiff
Pilcher was subjected to "a hostile work environment
causing her to be constructively discharged." (Id. ¶ 33.)
Finally, Count Three appears to be a claim of intentional
infliction of emotional distress brought by both
Plaintiffs. (Id. ¶ 36.) While not a model of craftsmanship,
Plaintiffs' initial complaint at least gave the Court a
basic idea of what claims each Plaintiff brought against
Defendant.
Despite being represented by the same counsel,
Plaintiff Pilcher elected to file an amended complaint that
purports to amend only those claims in the initial
complaint brought on her behalf. (Doc. 29.) Oddly, the
amended complaint states that "[t)his action is brought by
Plaintiff Toni Pilcher" and "incorporates the original
complaint as if fully set forth herein." (Id. at 1.) As if
this did not create enough confusion already, Plaintiff
Pilcher seems to dismiss her intentional infliction of
emotional distress claim. (Id.) Of course, this creates a
pleading paradox where that claim has now been both
included by reference and dismissed in the same amended
complaint.

But it gets worse. The amended complaint includes a
section titled "PARTIES." (Id. IT 5-20.) While one would
think that listing the parties in the amended complaint
might be redundant based on the incorporation of the entire
initial complaint, this portion of the amended complaint
contains fifteen paragraphs. However, only two of the
fifteen paragraphs provide information concerning the
parties in this case. The remaining thirteen paragraphs
are factual allegations, which the Court assumes are
additional to those contained in the initial complaint.
The amended complaint goes on to list one cause of
action against Defendants: retaliation in violation of
Title VII. (Id. ¶ 21-22.) What is unclear is whether this
is now the only cause of action Plaintiff Pilcher raises in
this case, or if it is in addition to the hostile workplace
claim alleged in the initial complaint. The Court's reading
of the amended complaint, along with the record, leaves it
in doubt.
Of course, the source of all this confusion is
plaintiff counsel's decision to file an amended complaint,
on behalf of only one plaintiff, that incorporated by
reference the very document it purports to replace. This
confusing state of affairs could have been easily avoided
with just a little more effort on counsel's part. In

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today's electronic world, the effort necessary to draft an
amended complaint that wholly replaces the previous
complaint is, at most, minimal. Instead, counsel has left
this Court to comb through two separate complaints and
cobble together the facts and claims involved in each, and
then match them to a specific plaintiff. Even Defendant
appears to have struggled somewhat with identifying the
claims alleged by Plaintiff Filcher. (Doc. 36, Attach. 1 at
1. n.l.)
At this point, the Court is going to decline
Plaintiffs' invitation to reassemble their deconstructed
complaint. Instead, Plaintiffs are DIRECTED to file, within
twenty-one days from the date of this order, a second
amended complaint containing all the facts and claims
alleged by both Plaintiffs. The second amended complaint
should clearly state the specific causes of action alleged
by each particular Plaintiff. Each of those causes of
action should be separated into distinct counts that
clearly state the cause of action and the specific factual
allegations that support an entitlement to relief.
In the interim, the Court will

HOLD

IN ABEYANCE

Defendant's Motions for Summary Judgment. Defendant shall
have thirty days from the date Plaintiffs file their second
amended complaint to refile any motion for summary judgment

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in response to the second amended complaint. The normal
briefing schedule for responses and replies shall apply to
any refiled motions. Should Defendant elect not to refile,
the Court will address their original motions at that time.
The Clerk of Court is

DIRECTED

to terminate Defendant's

pending Motions for Summary Judgment (Doc. 36; Doc. 37) for
statistical purposes only.
Importantly, counsel should be aware that the Court
will not accept any amended complaint that incorporates by
reference any factual allegation or cause of action
contained in an earlier filing. Plaintiffs' second amended
complaint should be a stand-alone filing that independently
contains all their claims and factual allegations in this
case. Out of an abundance of caution, the Court reminds
Defendant that it is subject to the same requirements.
Should Defendant elect to ref ile its motions for summary
judgment, those motions should be stand-alone filings that
independently contain all the arguments that Defendant
wishes the Court to consider.
'

SO ORDERED this

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day of September 2015.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA