Tomason et al v. Stanley Jr. et al

Filing 47

ORDER granting 15 Motion to Dismiss and Count III of Plaintiff's complaint is dismissed; granting 20 Motion to Certify Class; granting 42 Motion to Amend/Correct; denying 45 Motion for Extension of Time to File Response/Reply. Plaintiff 's proposed notice is Approved and Defendants are Ordered to provide last known permanent addresses, full names and the last 4 digits of the social security numbers for all farm workers they employed from 2010-2012. Plaintiffs will have 120 days from receipt of that information within which to provide potential opt-in plaintiff's with the proposed notice. Signed by Judge B. Avant Edenfield on 10/16/13. (wwp) Modified on 10/16/2013 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
SHERRY TOMASON et al., and others
similarly situated,
Plaintiffs,
6: 13-cv-42

V.

R.T. STANLEY, JR., et al.,
Defendants.

ORDER
I.

INTRODUCTION

As the season for sweet onions ends,
another onion farm labor dispute begins.
Sherry Tomason and the other plaintiffs, all
former farm workers at Stanley Farms,
allege violations of the Fair Labor Standards
Act ("FLSA"), Migrant and Seasonal
Agricultural Worker Protection Act
("AWPA"), and 42 U.S.C. § 1981 that stem
from how Stanley Farms pays the people
who pick its produce. See ECF No. 1 at 1520. Now before the Court are (1)
Defendants' Motion to Dismiss, ECF No.
15; and (2) Plaintiffs' Motion For
Conditional Certification Of A FLSA
Collective Action, ECF No. 20; and (3)
Plaintiffs' Motion To Amend, ECF No. 42.
Although for separate reasons, the Court
GRANTS all three motions.
II.

BACKGROUND

For purposes of a motion to dismiss, the
Court accepts as true all factual allegations
in the complaint and construes them in the
light most favorable to the Plaintiffs. See

Powell v. Thomas, 643 F.3d 1300, 1302
(llthCir. 2011).
Stanley Farms, owned and operated by
the Stanley family, grows, harvests, packs,
and distributes Vidalia sweet onions and
other produce. ECF No. 1 at 3. 5.
"Plaintiffs are migrant and seasonal farm
workers who worked for Defendants' farm
operations in and around Tobs Qtnty i
2010. 2011. and 2012." 1at 1ScTrn'
plaintiffs are black, some tare wl&e,
some are Hispanic.Id-a42ll aintiffs
are American citizens Id
Other Stanley employees 'ferrd to as
crew leaders recruited and suervised the
farm workers. Id. at : Although crew
leaders physically paid farm workers,
Defendants advanced money to the crew
leaders for wages and tools, prepared payroll
and pay stubs, and determined the wage
rates crew leaders could pay farm workers.
Id
Many of Defendants' farm workers were
American citizens, Plaintiffs included. But
in each farm season that Plaintiffs' claims
encompass—fall of 2010, and spring and
fall of 2011 and 2012, for a total of five
seasons----"Defendants [also] imported at
least 39 Hispanic workers of Mexican
national origin . . . for planting and
harvesting vegetables." Id. at 8. To employ
those migrant Mexican farm workers, crew
leaders and Defendants utilized the
Department of Labor's H-2A program, Id.,
which provides for temporary employment
of alien agricultural workers when (1)
insufficient domestic workers are available;
and (2) the employment of aliens will not
adversely affect the wages and working

I'

loading and unloading bags of onions, ECF
No. 1-3 at 4. Many of the plaintiffs worked
alongside the H-2A workers during spring
2011 but Defendants did not offer them "the
preferable wage rate available under the Fl2A job order." ECF No. I at 9.

conditions of domestic workers. 8 U.S.C. §
1188(a)(1).
An employer's application for H-2A
workers, called a "clearance order," must
certify that it "describes the actual terms and
conditions of the employment being offered
[to both H-2A workers and American citizen
workers] and contains all the material terms
and conditions of the job." 20 C.F.R. §
653.501(d)(3). Of those terms, the wages
and working conditions offered cannot fall
below those of "similarly employed
agricultural workers in the area of intended
employment or the applicable Federal or
State minimum wage, whichever is higher."
Id. at (d)(4). Importantly, employers must
offer the same wages and working
conditions to foreign H-2A workers and
American workers. Id at 655.122(a).

Fall 2011 and spring and fall 2012 were
no different. Defendants contracted with a
crew leader to provide H-2A workers,
supported an H-2A clearance order,
obligated themselves to pay a particular
wage to both American and H-2A workers,
then failed to pay that wage to Plaintiffs.
See Id at 9-11.
Plaintiffs brought this suit on April 12,
2013, alleging violations of the FLSA,
AWPA, and § 1981, all based primarily on
Defendants' failure to pay non-H-2A
workers the same wages as H-2A workers.
See Id at 15-20. Defendants answered and
then filed a motion to dismiss Plaintiffs' §
1981 claims for (1) failure to allege
sufficient facts and (2) because § 1981 will
not support a claim for discrimination in
contract based on national origin. See ECF
No, 15-1 at 4. 7. Unrelated to Defendants'
motion to dismiss, Plaintiffs have also filed
(1) a motion to conditionally certify their
FLSA claims as a collective action, ECF No.
20; and (2) a motion to amend their
complaint. ECF No. 42.

For the fall 2010 season, R.T. Stanley,
Jr. supported an H-2A application by crew
leader Jose Barco for forty farm workers.
ECF Nos. 1 at 8; 1-2 at 2. The order
anticipated forty hour work weeks and a
$9.11 per hour minimum wage rate, to be
achieved by paying various piece rates for
pull, planting, and salad onions. ECF No. 12 at 2. "Plaintiffs Maurice Burley, Sherry
Tomason, and Frank Washington worked
alongside the Fall 2010 H-2A workers on
Defendants' farm but were not offered the..
wage rate available under the H-2A job
order. . . ." ECF No. 1 at 8.

III. STANDARD OF REVIEW
FOR MOTIONS TO DISMISS

In spring 2011, Stanley, Jr. again
supported an H-2A application by Barco,
this time for forty-four workers. Id at 8-9.
This job order specified a minimum pay rate
of $9.11 per hour, once again to be achieved
by paying a piece rate for onion clipping and

Federal Rule of Civil Procedure 8(a)(2)
requires complaints to contain "a short and
plain statement of the claim showing that the
pleader is entitled to relief." "While a
complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed
'41

against Plaintiffs . . . in their employment
contracts by . . . denying Plaintiffs wages
provided to the foreign, Mexican workers,
based upon Plaintiffs' race and/or lack of
alienage." ECF No. I at 19. Defendants
contend that Plaintiffs (1) fail to support that
allegation with factual details; and (2) plead
only national origin discrimination, which §
1981 does not protect against. ECF No. 151 at 6-7. Because the Court agrees that
Plaintiffs claims cut only at national origin
GRANTS
discrimination, the Court
Defendants' motion to dismiss.

factual allegations," it must contain "more
than labels and conclusions, and a formulaic
recitation of the elements of a cause of
action will not do," Bell Au. Corp. v,
Twombly, 550 U. S. 544, 555 (2007).
As noted, courts must "take all of the
factual allegations in [a] complaint as true,"
but those allegations must raise "more than a
sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Jqbal, 556 U.S.
662, 678 (2009) (emphasis added). Indeed,
"[wjhere a complaint pleads facts that are
'merely consistent with' a defendant's
liability," it falls short of stating a claim for
relief. Id. (quoting Twombly, 550 U.S. at
557).
IV.

1. Section 1981 does not protect
against national origin
discrimination
By its text, § 1981 provides the same
rights to contract to "[a] 11 persons" as those
enjoyed by "white citizens." The statute's
plain language thus speaks only in terms of
race and citizenship status. So while § 1981
protects against race' and alienage
discrimination,2 it does not extend to
discrimination based on national origin. See
Tipple v. Spacelabs Meds'., Inc., 180 F.
App'x 51, 56 (11th Cir. 2006) ("[S]ection
1981 applies to claims of discrimination
based on race, not national origin."). The
question then becomes what kind of
discrimination Plaintiffs pled.

DISCUSSION

The Court's analysis proceeds in three
parts. First, the Court evaluates Defendants'
motion to dismiss Plaintiffs' claims of
discrimination in contract. ECF No. 15.
Second, the Court addresses Plaintiffs'
motion for conditional certification of an
FLSA collective action. ECF No. 20. And
third, the Court addresses Plaintiffs' motion
to amend. ECF No. 42.
A. 42 U.S.C. § 1981
Section 1981(a) provides that "[a]ll
persons within the jurisdiction of the United
States shall have the same right in every
State * . . to make and enforce contracts.
as is enjoyed by white citizens." The phrase
"[m]ake and enforce contracts. . . includes.
the enjoyment of all benefits, privileges,
terms, and conditions of the contractual
relationship." 42 U.S.C. § 198 1(b).

See Fern!! v. Parker Grp., Inc., 168 F.3d 468, 473
(11th Cir. 1999).
'See, e.g., Anderson v. Conboy, 156 F.3d 167, 171
(2d Cir. 1998) Wright v. Southland Corp., 187 F.3d
1287, 1306 n.12 (11th Cir. 1999) (noting in dicta that
"[r]etiising to hire an individual on the basis of
alienage is illegal under. . . § 1981.").

Plaintiffs' § 1981 claims allege that
"Defendants intentionally discriminated
3

L

drinks, and/or cigarettes further reduced
their wages below minimum wage." ECF
No. 1 at 14. At best, the cited material
bolsters Plaintiffs' claims of wage
discrimination. But at no point do they
contribute to stating a claim for
discrimination in contract on the basis of
race or alienage.

2. Plaintiffs pled only claims of
discrimination based on national
origin
The class of plaintiffs here consists of
several different races—black, white, and
Hispanic. See 1CF No. 1 at 2-3. Despite
the racial diversity, all plaintiffs are
American citizens. The H-2A workers, on
the other hand, are all Mexican nationals of
Hispanic descent. Id at 8-11. Plaintiffs' §
1981 claims stem from Defendants failure to
offer Plaintiffs "the preferable wage rate
available under the H-2A job order" paid to
Mexican workers. Id at 8.

A more fundamental flaw with
Plaintiffs' § 1981 argument lies in the
apparent assertion that discrimination
against American citizens, in America,
constitutes discrimination based on alienage.
Although § 1981 permits claims of alienage
discrimination, see Wright, 187 F.3d at 1306
n. 12, and claims of reverse racial
see
discrimination against whites,
McDonald v. Santa Fe Trails
Transportation Co.. 427 U.S. 273 (1976), it
does not permit claims of reverse alienage
discrimination of the type Plaintiffs have
pled. "Discrimination against whites is
racial discrimination, but (in America)
discrimination against Americans can never
be discrimination based on alienage"
because American citizens have no status as
aliens upon which the discrimination can be
based. Chaffetz v. Robertson Research
Holding, Ltd., 798 F.2d 731, 735 (5th Cir.
1986). Such discrimination "can only be
based on national origin" and therefore is
unprotected by § 1981. See Tipple, 180 F.
App'x at 56.

Plaintiffs also allege that Defendants
based the denial of H-2A wages "upon
Plaintiffs' race and/or lack of alienage." Id
at 19. But this is nothing more than a
conclusory allegation that the Court cannot
consider in deciding a motion to dismiss.
See Bell At!. Corp. v. Twombly, 550 U.S.
544, 555 (2007). "While legal conclusions
can provide the framework of a complaint,
they must be supported by factual
allegations." Ashcroft v. Iqbai, 556 U.S.
662, 679 (2009). Such conclusions "are not
entitled to the assumption of truth" given
factual allegations. Id. Although Plaintiffs
sufficiently allege wage discrimination, they
plead no facts to support their conclusion
that race or alienage undergirded
Defendants' discrimination.
Plaintiffs contend they allege both race
and alienage discrimination at paragraphs
45-55, 68-72, 87-88, and 91 of their
complaint. ECF No. 19 at 3. None of the
cited paragraphs refers in the slightest to
race or alienage. Paragraph 91, for example,
states that "[p]laintiffs' purchase of food,

Plaintiffs failed to plead facts supporting
their conclusion that Defendants' alleged
discrimination occurred because of race or
alienage. Regardless, a claim of alienage
discrimination by Americans, in America,
dies on the proverbial vine no matter the
4

after discovery is largely complete. Id At
that time the Court, applying a more
stringent standard, determines whether the
class members are in fact similarly situated.
Id.

facts pled. Defendants' motion to dismiss is
accordingly GRANTED.
B. Certification Of An FLSA
Collective Action
The FLSA authorizes plaintiffs to bring
a collective action on behalf of similarly
situated employees. 29 U.S.C. § 216(b). 3
Section 216(b) class certification, unlike that
under Federal Rule of civil Procedure 23,
requires putative class members to opt in to
the 216(b) action by providing the court
written consent in order to become a class
member "and be bound by the outcome of
the action." Id; Hipp v. Liberty Nat '1 Life
Ins. Co., 252 F.3d 1208, 1216 (11th Cir.
2001).

This case resides at the earlier notice
stage of FLSA certification. At this stage,
the Court conducts a preliminary inquiry
into whether other employees (1) are
similarly situated with regard to job
requirements and pay provisions and (2)
wish to opt in to the pending suit. Dybach v.
Fla. Dept of Corr., 942 F.2d 1562, 1567-68
(11th Cir. 1991). If the Court finds both
considerations met, conditional certification
follows.
Plaintiffs argue that (1) their submission
of seventeen consent to sue forms
demonstrates other employees wish to opt
in; and (2) other farm workers are similarly
situated to Plaintiffs because they share job
requirements and pay practices. ECF No. 20
at 6-8. Defendants dispute primarily
Plaintiffs' similarly situated assertion,
arguing that (1) Plaintiffs cannot include I-I2A workers in their proposed class; (2) a
settlement between Stanley Farms and the
Department of Labor ("DOL") bars a
portion of the proposed class from bringing
suit; (3) the proposed class has several
different primary employers; and (4) the
inquiry into minimum wage violations
requires individualized inquiries and is thus
inappropriate for class treatment. ECF No.
30 at 2.

To facilitate the certification process,
courts use a two-tiered approach. Hipp, 252
F.3d at 1218 (citing Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.
1995)). The first tier of certification is the
notice stage, at which point the Court
determines whether notice of the pending
action should be given to putative class
members. Id The Court applies a "fairly
lenient standard" to determining the
propriety of notice and typically grants
conditional certification of a collective
action. Id. The second tier of certification,
generally precipitated by a defendant's
motion for decertification, usually occurs
"An action to recover the liability prescribed in [29
U.S.C. §§ 206 (governing minimum wage standards)]
may be maintained against any employer. . . by any
one or more employees for and in behalf of himself
or themselves and other employees similarly situated.
No employee shall be a party plaintiff to any such
action unless he gives his consent in writing to
become such a party and such consent is filed in the
court in which such action is brought." 29 U.S.C. §
216(b),

I. Plaintiffs have demonstrated other
employees wish to opt in
Plaintiffs' submission of seventeen
affidavits from other employees, see ECF
1

Nos. 7; 10, is more than enough to show a
desire by non-parties to opt in. See Davis v.
Charoen Pokp hand (USA), Inc., 303 F.
Supp. 2d 1272, 1277 (M.D. Ala. 2004)
(noting that courts affirm the existence of
other employees who wish to opt in based
on affidavits); Harper v. Lovett 's Buffet.
Inc., 185 F.R.D. 358, 362 (M.D. Ala. 1999)
(affirming presence of opt in plaintiffs based
on fifteen affidavits). Satisfied by Plaintiffs'
evidence on this prong of the conditional
certification inquiry, 4 the Court turns to an
examination of whether other farm workers
are similarly situated to Plaintiffs.

2. Plaintiffs have shown that other
employees are similarly situated
The similarly situated requirement of §
216(b) "is not particularly stringent." Hipp,
252 F.3d at 1214. In fact, "[p]laintiffs need
show only that their positions are similar,
not identical, to the positions held by the
putative class members." Grayson v. KMart Corp., 79 F,3d 1086, 1096 (11th Cir.
1996) (internal quotations omitted).
Plaintiffs have made such a showing as
to job requirements and pay provisions. As
Plaintiffs note, they "and their co-workers
were all farmworkers." ECF No. 20 at 8.
' Defendants argue that the lack of any affidavits
from l-1-2A workers undermines Plaintiffs' showing
that people wish to opt in. ECF No. 30 at 3.
Whether or not l-l-2A. workers submitted affidavits,
seventeen other farm workers swear they wish to opt
in. That's enough at this stage of the game. Later,
after discovery is largely complete, Defendants may
re-raise this point if they move to decertify the
collective action or limit the scope of the proposed
class.
By comparison, the common question requirement
for joinder under Federal Rule of Civil Procedure 20
is more stringent than the similarly situated
requirement of § 216(b). See Grayson v K-Mart
Corp., 79 F.3d 1086, 1096(11th Cir. 1996).

They all "harvested and planted produce."
Id And all of Stanley's farm workers—
Plaintiffs and their coworkers—received
piece rate pay under a payroll system
Stanley controlled. See Id.; ECF Nos. 1-2 at
2; 1-3 at 4; 1-4 at 4; 1-5 at 5. Plaintiffs and
the proposed class members therefore are
sufficiently similarly situated to justify
conditional certification of a collective
action under § 216(b). See, e.g., Monroe v.
FTS USA, LLC, 257 F.R.D. 634,638 (W.D.
Tenn. 2009) (finding proposed class
similarly situated to plaintiffs where all
employees performed "the same job
functions" and received pay under the same
piece rate compensation scheme).
Defendants make several arguments
opposing certification on grounds that other
employees are not similarly situated to
Plaintiffs. First, Defendants argue that crew
leaders, not Stanley Farms, employed farm
workers and thus that those workers are only
similarly situated to other workers employed
by the same crew leader. See ECF No. 30 at
9. But whether or not a crew leader or
Stanley Farms constituted the farm workers'
primary employer, Stanley Farms hired the
crew leaders and prepared the payroll for all
farm workers. ECF No. 13 at 5-6.
Plaintiffs' allegations, moreover, are not that
individual crew leaders failed to pay the
minimum wage; rather, Plaintiffs contend
that piece rate pay—a system instituted by
Stanley Farms—itself resulted in illegal pay
rates because Stanley failed to account for
all hours worked during its preparation of
payroll. See ECF No. 20 at 9. The Court
will not deny conditional certification
because a supervisory layer stands between
the farm workers and Stanley Farms.

individual. But the commonality required
for conditional certification of an FLSA
collective action is not on par with that
required of a class action under Federal Rule
of Civil Procedure 23. See Grayson, 79
F.3d at 1096 (noting that the similarly
situated requirement for FL SA collective
actions is "considerably less stringent than
the requirement of [Rule 23(b)(3)] that
common questions predominate."). At this
stage of the proceedings, Plaintiffs only
need show similarity in job duties and pay
provisions, which they have done. Id.

Second, Defendants claim a settlement
between Stanley Farms and the DOL bars
claims pertaining to unpaid wages between
March 31, 2012 and May 5, 2012 for fiftyfour farm workers, including named
plaintiffs Maurice Burley and Felicia Gillis.
ECF No. 30 at 10. Defendants correctly
note that the DOL may supervise payment
of unpaid minimum wages from employers
to employees and that the "agreement of any
employee to accept such payment shall upon
full payment constitute a waiver by such
employee of any" private right of action to
sue for unpaid wages. 29 U.S.C. § 216(c).
But merely sending out checks, even if
employees cash those checks, is insufficient
to show agreement by employees to waive
their rights under the FLSA. See Walton v.
United Consumers Club, 786 F.2d 303, 30405 (7thCir. 1986).

For purposes of conditional certification.
Plaintiffs have shown that other farm
workers have similar job duties and pay
provisions to those Plaintiffs complain
about. Because Plaintiffs have also shown
the existence of farm workers who wish to
opt in to this action, the Court conditionally
certifies Plaintiffs' FLSA claims as a
collective action pursuant to 29 U.S.C. §
216(b). Plaintiffs may represent any class
member who opts in to this case unless and
until Defendants successfully move for
decertification.

Absent some sort of affirmative waiver,
like a signed WH-58 form, 6 employer
payment under a DOL settlement does not
erase an employee's right to sue. Id. at 305.
And Defendants have shown no such
agreement on the part of either Gillis or
Burley, or, for that matter, any of the fiftyfour farm workers the DOL settlement
encompasses. The settlement therefore does
not affect the ability of farm workers to
participate in this Suit.

Before turning to Plaintiffs' motion to
amend, the Court must first address the
terms of Plaintiffs' proposed notice, and
Plaintiffs' requests that the Court (1) order
Defendants "to produce the names and last
known permanent addresses of all potential
opt-in plaintiffs," and (2) grant Plaintiffs'
counsel four months from the date
Defendants produce names and addresses to
distribute notice to potential opt in plaintiffs.
ECF No. 20 at 1.

Lastly. Defendants argue that "this case
is unsuitable for collective action status"
because "an individualized inquiry is
necessary to determine whether an employee
was not properly paid." ECF No. 30 at 14.
Perhaps the inquiry is fundamentally
6

WH-58 forms are the DOL's official release form,

See ECFNo. 34-1.

7

r

Federal Rule of Civil Procedure 15(a)(2)
requires parties to seek leave of court to
amend complaints when twenty-one days
from service of a responsive pleading or
motion to dismiss have passed, whichever is
earlier. Courts "should freely give leave
when justice so requires." Id.

3. Miscellaneous relief associated with
conditional certification
Plaintiffs proposed notice is materially
identical to that approved by the Court in
0/edo-Sanchez v. Bland Farms, No. 6:08cv-96. ECF No. 103-1. The Court can
discern no reason why that notice would be
inappropriate in this case and so approves
Plaintiffs' proposed notice.

• The amendments Plaintiffs seek do not
cut at the substantive allegations in the
original complaint. The opt in plaintiffs
whose joinder Plaintiffs request do not
change the racial or nationality mix critical
to the Court's analysis of Defendants'
motion to dismiss. And all other
amendments are minor, addressing matters
that do not bear on either of the two motions
resolved earlier in this Order.

Given the conditional certification of
Plaintiffs' FLSA claims, and the Court's
finding that notice is appropriate, the Court
also GRANTS Plaintiffs other requested
relief. The Court ORDERS Defendants to
provide Plaintiffs' counsel with the full
names, last known permanent addresses, and
the last four digits of the social security
numbers for all farm workers employed by
Defendants from 2010-2012 within thirty
days of this Order. Plaintiffs' counsel has
120 days from the receipt of contact
information from Defendants to provide
notice to potential opt-in plaintiffs.

So, Plaintiffs' motion to amend is
GRANTED, but Count III, for the same
reasons count III of the original complaint
failed, fails to state a claim and so is
DISMISSED.
V.

C. Plaintiffs' Motion To Amend

CONCLUSION

Plaintiffs fail to state a claim under 42
U.S.C. § 1981 because that statute does not
protect against discrimination on the basis of
national origin and because Plaintiffs pled
no facts supporting racial or alienage
discrimination. Defendants' motion to
dismiss, ECF No. 15, is GRANTED. Count
III of Plaintiffs' complaint is DISMISSED.

Plaintiffs seek leave to join several opt
in plaintiffs as parties to this case, as well as
correct some minor inaccuracies and typos
See ECF No. 42.
in the complaint.
Defendants object to the proposed
amendment primarily on grounds that it does
nothing to cure the deficiencies in Plaintiffs'
§ 1981 claims. ECF No. 44. Although
Defendants are correct that the amended
complaint's § 1981 count continues to fail to
state a claim, the Court nevertheless
GRANTS Plaintiffs' motion!

Plaintiffs' motion for conditional class
certification of their FLSA claims fares
better because it demonstrates that potential
to amend. ECF No. 45. The Court sees no value in
delaying adjudication of the motion to amend in
favor of more briefing. The issues involved are not
complex and more ink need not be spilled. The
motion for extension is DENIED.

Plaintiffs recently filed a motion for extension of
time to reply to Defendants' response to the motion

8

opt in plaintiffs wish to join this suit and that
those potential parties are similarly situated
to the named plaintiffs. Plaintiffs' motion to
certify, ECF No. 20, therefore is
GRANTED. Plaintiffs proposed notice is
and Defendants are
APPROVED
ORDERED to provide last known
permanent addresses, full names, and the
last four digits of the social security
numbers for all farm workers they employed
from 2010-2012. Plaintiffs will have 120
days from receipt of that information within
which to provide potential opt-in plaintiffs
with the proposed notice.
Finally, Plaintiffs motion to amend, ECF
No. 42, is GRANTED because the proposed
changes to the complaint do not cause
Defendants any prejudice. Count III of the
amended complaint, however, fails to state a
claim and remains DISMISSED.

This

)4f October 2013.

Vp j
B. AVANT EDENFIELD, JUDGE //
UNITED STATES DISTRICT COU,1T
SOUTHERN DISTRICT OF GEORGIA
- 11

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