Williams v. MMO Behavioral Health Systems, L.L.C.
Filing
60
ORDER AND REASONS granting in part and denying in part 36 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 23 Motion for Summary Judgment, as more fully set forth in document. Signed by Judge Carl Barbier on 11/09/2018. (jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JANICE WILLIAMS
CIVIL ACTION
NO: 16-11650
VERSUS
MMO BEHAVIORAL HEALTH
SYSTEMS, LLC, ET AL.
SECTION: “J”(4)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 23) filed by
Defendant MMO Behavioral Health Systems, LLC (“MMO”) and a Motion to Dismiss
(Rec. Doc. 36) filed by Defendant Greenbrier Hospital, LLC (“Greenbrier”). Plaintiff,
Janice Williams (“Plaintiff”), opposes both motions (Rec. Docs. 24, 44). Greenbrier
filed a reply (Rec. Doc. 48) to Plaintiff’s opposition to its motion to dismiss. Having
considered the motion and legal memoranda, the record, and the applicable law, the
Court finds that the Motion for Summary Judgment should be GRANTED IN PART
AND DENIED IN PART, and the Motion to Dismiss should be GRANTED IN
PART AND DENIED IN PART.
FACTS AND PROCEDURAL HISTORY
This litigation derives from alleged discriminatory employment practices by
Plaintiff’s former employer, Greenbrier, and Greenbrier’s former parent company,
MMO. On July 29, 2015, Plaintiff was terminated from her position as a cook at
1
Greenbrier after she allegedly falsified time and received compensation for time that
she had not worked.
Following her termination, Plaintiff filed a claim against Greenbrier with the
Louisiana Workforce Commission for unemployment insurance benefits. MMO’s HR
Director, Unnati Umarvadia, represented Greenbrier throughout those proceedings.
Months later and after the proceedings before the Louisiana Workforce Commission
had concluded, Plaintiff filed a complaint with the EEOC against MMO, alleging that
she was discriminated against based on her race, age, and disability. Plaintiff neither
named nor referred to Greenbrier in her EEOC complaint.
On June 24, 2016, after receiving a right to sue letter from the EEOC, Plaintiff
filed a complaint against MMO in this Court, asserting causes of action under the
Family & Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), Age
Discrimination in Employment Act (“ADEA”), and the Louisiana Employment
Discrimination Law, La. R.S. 23:301, et seq. (“LEDL”). After obtaining leave of court,
Plaintiff filed an amended complaint on February 6, 2017, naming Greenbrier as a
defendant. As amended, Plaintiff’s complaint states federal and state law causes of
action for discrimination under the FMLA, ADA, ADEA, and LEDL against MMO
and Greenbrier. In addition, Plaintiff alleges a state law defamation claim against
both defendants for allegedly defamatory statements made to the Louisiana
Workforce Commission. On August 17, 2017, over six months after filing her amended
complaint, Plaintiff requested issuance of summons upon Greenbrier. On August 24,
2
2017, Plaintiff served Greenbrier with a summons and its amended complaint. (Rec.
Doc. 30).
On July 14, 2017, MMO filed a motion for summary judgment, which Plaintiff
opposed. On September 6, 2017, the Court denied the motion without prejudice to be
re-urged at a later date. MMO re-urged its motion for summary judgment on October
13, 2017, and this Court granted the motion to re-urge. On September 30, 2017,
Greenbrier filed a motion to dismiss Plaintiff’s claims against it. Plaintiff filed an
opposition, and Greenbrier filed a reply.
PARTIES’ ARGUMENTS
I.
MMO’s Motion for Summary Judgment
The movant argues that Plaintiff has no right of action against MMO because
Plaintiff was employed by Greenbrier at the time she was discharged from
employment, Plaintiff has never been an employee of MMO, and MMO is a distinct
legal entity from Greenbrier. (Rec. Doc. 23, at 2). For these and additional reasons,
MMO argues that Plaintiff’s FMLA, ADA, ADEA, LADEA, and defamation claims
against MMO must fail. Specifically, MMO argues that summary judgment is proper
as to Plaintiff’s FMLA claim because MMO does not qualify as an “employer” within
the meaning of the FMLA because it does not employ fifty or more employees. (Rec.
Doc. 23-2, at 2). Likewise, MMO argues that it is entitled to summary judgment on
Plaintiff’s ADA claim because Plaintiff fails to state in her complaint why she was in
the protected group or how she was disabled (Rec. Doc. 23-2, at 3) and on Plaintiff’s
ADEA claim because the amended complaint fails to assert Plaintiff’s age. (Rec. Doc.
3
23-2, at 3-4). MMO argues that summary judgment is also proper as to Plaintiff’s
claim under the LADEA because Plaintiff fails to provide the specific basis for
discrimination, noting only that she was discriminated against on account of her
disability, which is not a basis under the statute. (Rec. Doc. 23-2, at 4-5). Finally,
MMO asserts that Plaintiff has no right of action for defamation against MMO
because the alleged defamatory statements made to the Louisiana Workforce
Commission regarding Plaintiff were made by Greenbrier only. (Rec. Doc. 23-2, at 5).
Based on the foregoing, MMO seeks summary judgment and dismissal from this
lawsuit. (Rec. Doc. 23-2, at 6).
In opposition, Plaintiff argues that summary judgment should not be granted
in MMO’s favor for two reasons. (Rec. Doc. 24, at 2). First, Plaintiff argues that MMO
failed to produce evidence to supports its contention that MMO is not a covered FMLA
employer because it does not employ fifty or more employees, noting that “[t]he only
support for this premise is a denial contained in paragraph 4 of MMO’s answer.” (Rec.
Doc. 24, at 2). Second, Plaintiff argues that although “it appears that MMO and
Greenbrier are distinct legal entities,” MMO and Greenbrier operate as a single,
integrated enterprise. (Rec. Doc. 24, at 2). In support of this argument, Plaintiff
references the following documents in the record:
•
•
The document Unnati Umarvadia sent to the Louisiana Workforce
Commission (“LWC”) on August 17, 2015, which contains the heading
“MMO Behavioral Health Systems” listing the address 201 Greenbrier
Boulevard and identifying Ms. Umarvadia as MMO’s HR Director. (Rec.
Docs. 24, at 3 and 24-1, at 1).
The Notice of Claim Filed, which is addressed to Greenbrier Hospital
located at 201 Greenbrier Boulevard. (Rec. Docs. 24, at 3 and 24-1, at 2).
4
•
•
•
•
•
•
•
•
•
•
The Notice to Base Period Employers, which Plaintiff states appears to
be in the handwriting of Ms. Umarvadia. (Rec. Docs. 24, at 4 and 24-1,
at 3).
The LWC request for information concerning Plaintiff’s termination,
which is addressed to Greenbrier Hospital and “*Greenbrier Holding
Company LL.” (Rec. Docs. 24, at 4 and 24-1, at 4).
The Separation of Employment Notice, which contains an MMO heading
and indicates the program as “MMO Greenbrier Hospital.” (Rec. Docs.
24, at 4 and 24-1, at 5).
The Time and Attendance Detail Report by Employee for “ALL
COMPANIES,” which Plaintiff assumes is an MMO form. (Rec. Docs. 24,
at 4 and 24-1, at 6).
The MMO fax cover sheet that Ms. Umarvadia sent to LWC on August
25, 2015. (Rec. Docs. 24, at 4 and 24-2, at 1).
The MMO fax cover sheet that Ms. Umarvadia sent to LWC on August
31, 2015. (Rec. Docs. 24, at 5 and 24-3, at 1).
A Notice of Claim Determination addressed to Greenbrier Hospital and
“*Greenbrier Holding Company LL” containing a checked “I APPEAL”
box and signed by Ms. Umarvadia. (Rec. Docs. 24, at 5 and 24-3, at 2).
The MMO fax cover sheet that Ms. Umarvadia sent to LWC on
September 14, 2015. (Rec. Docs. 24, at 5 and 24-4, at 1).
An email dated September 14, 2015 from Ms. Umarvadia to the LWC
appeal clerk confirming that Ms. Umarvadia will appear at the hearing
on behalf of the Employer. Ms. Umarvadia’s e-mail signature describes
her position as HR Director and references both MMO and Greenbrier.
(Rec. Docs. 24, at 5 and 24-5, at 1).
The Decision of the Administrative Law Judge, which describes
Plaintiff’s employer as “Greenbrier Hospital” and also references
“Greenbrier Holding Co., LL.” (Rec. Docs. 24, at 6 and 24-7, at 1).
Based on the foregoing, Plaintiff argues that summary judgment should not be
granted because there is a genuine issue of material fact as to whether MMO and
Greenbrier are “sufficiently connected through interrelation of operations,
centralized control of labor relations, common management, and common ownership
or financial control such that there is essentially no distinction between them for
purposes of this lawsuit.” (Rec. Doc. 24, at 6). Plaintiff asserts that the Declaration of
MMO’s Chief Executive Officer, Robert Miller, that MMO and Greenbrier are distinct
5
legal entities “does not address the issue of whether MMO and Greenbrier operated
as a single, integrated enterprise for purposes of the statutes under which these
claims arise.” (Rec. Doc. 24, at 7).
II.
Greenbrier’s Motion to Dismiss
The movant argues that the Court should dismiss all of Plaintiff’s claims
against it pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service
of process and Rule 12(b)(6) for failure to state a claim. (Rec. Doc. 36, at 1). First,
Greenbrier contends that Plaintiff’s amended complaint against Greenbrier must be
dismissed for insufficient service of process pursuant to Rule 12(b)(5) because
Plaintiff failed to serve Greenbrier within the 90-day timeframe required under Rule
4(m). (Rec. Doc. 36, at 1). Greenbrier emphasizes that despite continuing litigation
against MMO after amending her complaint, Plaintiff failed to request issuance of
summons upon Greenbrier until 200 days after the amendment. (Rec. Doc. 36-1, at 56). Accordingly, Greenbrier concludes that Plaintiff’s claims against Greenbrier
should be dismissed for insufficient service of process. (Rec. Doc. 36-1, at 6).
Greenbrier also moves to dismiss Plaintiff’s amended complaint pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Rec. Doc.
36-1, at 6). Greenbrier argues that Plaintiff fails to meet the minimum pleading
standard for three reasons. (Rec. Doc. 36-1, at 7). First, Greenbrier asserts that
Plaintiff failed to administratively exhaust her discrimination claims against it by
failing to name Greenbrier in her EEOC Charge of Discrimination. (Rec. Doc. 36-1,
6
at 7-8). 1 Second, Greenbrier contends that Plaintiff’s ADA, ADEA, LEDL, and
defamation claims against it are time-barred. (Rec. Doc. 36-1, at 8-11). Greenbrier
argues that Plaintiff’s untimeliness cannot be cured because the amended complaint
does not relate back to the date she filed her original complaint. (Rec. Doc. 36-1, at
11-16). Finally, Greenbrier argues that Plaintiff’s conclusory factual allegations are
insufficient to state a claim against Greenbrier. (Rec. Doc. 36-1, at 16-18). Greenbrier
emphasizes that Plaintiff’s amended complaint asserts no facts from which the Court
could plausibly infer that Greenbrier violated the FMLA or took any employment
actions based on Plaintiff’s age 2 or alleged disability. 3 (Rec. Doc. 36-1, at 17-18).
Based on the foregoing, Greenbrier concludes that all claims asserted against
Greenbrier in the amended complaint must be dismissed as a matter of law. (Rec.
Doc. 36-1, at 18).
Plaintiff raises two arguments in opposition to Greenbrier’s motion to dismiss.
(Rec. Doc. 44). First, Plaintiff argues that its failure to serve Greenbrier with the
amended complaint timely is not fatal to its claims against Greenbrier because this
Court failed to notify Plaintiff of her noncompliance with Rule 4(m) “as required” by
Local Rule 16.2. 4 (Rec. Doc. 44, at 1-2). Plaintiff also contends that she “reasonably
Plaintiff’s EEOC Charge of Discrimination named only MMO as the Respondent. (Rec. Doc. 36-1, at 8).
Greenbrier contends that Plaintiff’s amended complaint “does not even identify her age, or even that she is covered
by the ADEA: it has no facts regarding her age, no facts regarding Greenbrier’s knowledge of her age, and no facts
regarding the age of her replacement or a similarly-situated comparator.” (Rec. Doc. 36-1, at 18).
3
Greenbrier notes that Plaintiff “provides no facts plausibly suggesting that she qualified as disabled given what
appears to be routine and temporary medical conditions, no facts regarding how Greenbrier treated similarly-situated
comparators who engaged in the same work-related misconduct and no facts otherwise sufficient to raise an
inference of disability discrimination.” (Rec. Doc. 36-1, at 17).
4
Local Rule 16.2 provides that “[t]o ensure compliance with FRCP 4(m), the case manager in each section of court,
once a month or as often as the court deems proper, must call all cases before the court that have been pending 120
days or longer after filing of the complaint, and in which issue has not been joined. The call must be on the regular
1
2
7
expected MMO to join Greenbrier as a third party defendant pursuant to FRCP 19.”
(Rec. Doc. 44, at 3). Without explanation, Plaintiff concludes that she “acted to cure
the deficiency promptly.” (Rec. Doc. 44, at 3).
Next, Plaintiff contests Greenbrier’s assertion that it is entitled to dismissal of
all claims against it due to Plaintiff’s failure to exhaust administrative remedies,
failure to timely file, and failure to raise more than conclusory allegations. (Rec. Doc.
44, at 4-7). Regarding the failure to name Greenbrier in the EEOC Charge, Plaintiff
asserts that she had no information available to her at the time of filing to indicate
that MMO and Greenbrier were separate entities. (Rec. Doc. 44, at 5). Without citing
any authority, Plaintiff concludes that her failure to include Greenbrier “cannot be
laid at the feet of the plaintiff” because MMO was named in the EEOC Charge, MMO
“was the only party in a position to know of Greenbrier’s involvement,” and MMO
“chose to remain silent.” (Rec. Doc. 44, at 5). Plaintiff next argues that her failure to
timely file is cured by her amended complaint, which relates back to the date of filing
the original complaint. (Rec. Doc. 44, at 6). Plaintiff contends that the requirements
for relation back are satisfied because “Greenbrier actually knew, constructively
knew, or should have known that Plaintiff’s action would have been brought against
it” given that “MMO’s interest and Greenbrier’s interest were identical at the time
the plaintiff was terminated.” (Rec. Doc. 44, at 6). Finally, Plaintiff argues that if the
Court concludes the allegations in the amended complaint are conclusory, an
day and time assigned for submission of motions, and the clerk must give 14 days’ notice of the call to all counsel of
record.”
8
opportunity to cure the deficiency in a second amended complaint must be provided.
(Rec. Doc. 44, at 7).
Greenbrier raises two points in its reply to Plaintiff’s opposition. (Rec. Doc. 48).
First, Greenbrier asserts that the responsibility for effectuating service rests upon
Plaintiff, not this Court. (Rec. Doc. 48). Greenbrier notes that Local Rule 16.2 does
not toll the 90-day period for service required under Rule 4(m) as Plaintiff appears to
suggest. (Rec. Doc. 48, at 2). Nevertheless, Greenbrier points out that “this Court did
in fact previously warn [Plaintiff] of non-compliance with Rule 4(m).” 5 (Rec. Doc. 48,
at 2).
Second, Greenbrier argues that Plaintiff’s failure to address the elements
required for relation back establishes that her amended complaint does not relate
back to the original complaint. (Rec. Doc. 48, at 2-6). Greenbrier avers that Plaintiff
incorrectly focuses on the “identity of interest” shared by MMO and Greenbrier at the
time of Plaintiff’s termination, rather than at the time she filed the original
complaint. (Rec. Doc. 48, at 3). Greenbrier argues that “[b]ecause MMO and
Greenbrier were not affiliated at the time Plaintiff filed her Charge of Discrimination,
the original Complaint, and the First Amended Complaint (all of which occurred after
November 10, 2015), there is no basis for imputing notice [of the litigation at issue]
from MMO to Greenbrier.” (Rec. Doc. 48, at 4-5). Greenbrier goes on to assert that
even if Plaintiff could prove there were an identity of interest between MMO and
Greenbrier contends that the Court warned Plaintiff of her failure to timely serve MMO with the original complaint
during a docket call in October 2016. Greenbrier goes on to note that Plaintiff cites to no authority to support her
implied contention that the Court should have warned her again after she failed to timely serve Greenbrier with the
amended complaint. (Rec. Doc. 48, at 2).
5
9
Greenbrier at the time Plaintiff filed her original complaint, dismissal of Plaintiff’s
claims against Greenbrier is still required because Plaintiff cannot establish that
Greenbrier received sufficient notice of this lawsuit given Plaintiff’s failure to serve
MMO within 90 days after filing the complaint. (Rec. Doc. 48, at 5). Specifically,
Greenbrier alleges that Plaintiff’s notice to MMO could be imputed to Greenbrier only
if MMO was served with the original complaint within the time required by Rule
4(m), which did not occur here. 6 (Rec. Doc. 48, at 5-6).
LEGAL STANDARD
I.
Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
Greenbrier notes that Plaintiff filed the original complaint on June 26, 2016, but she did not serve MMO until
September 26, 2016 (ninety-four days later). (Rec. Doc. 48, at 5).
6
10
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer that it may not
persuade the reasonable fact-finder to return a verdict in favor of the moving party.”
Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely pointing
out that the evidence in the record is insufficient with respect to an essential
element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or referring to
evidence, set out specific facts showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings, but must identify specific facts
that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.
II.
Motion to Dismiss
Under the Federal Rules of Civil Procedure, a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the
11
claim is and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo, 544 U.S.
336, 346 (2005) (internal citations omitted). The allegations “must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1).
“Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege
any set of facts in support of his claim which would entitle him to relief.” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A court must accept all wellpleaded facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. “[C]onclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.
Under Rule 12(b)(5), a defendant may assert insufficient service of process as
a defense to a claim for relief. Lewis v. La. Dep't of Transp. & Dev., No. 10-4600, 2011
WL 3502327, at *1 (E.D. La. Aug. 10, 2011). Once the validity of service of process
has been contested, the plaintiff bears the burden of establishing its validity. Carimi
12
v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). A district
court has broad discretion to dismiss an action pursuant to Rule 12(b)(5) for
insufficient service of process. Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d
634, 645 (5th Cir. 1994).
DISCUSSION
I.
MMO’s Motion for Summary Judgment
a. FMLA
The parties do not explicitly address who bears the burden of establishing that
MMO is an “employer” subject to the FMLA. MMO contends that it is entitled to
judgment in its favor on Plaintiff’s FMLA claim because Plaintiff cannot show that it
employs at least fifty employees. Plaintiff argues that MMO has failed to come
forward with sufficient summary judgment evidence to affirmatively demonstrate
that MMO does not meet the FMLA employee threshold.
The FMLA requires a covered employer to allow an eligible employee up to
twelve weeks of unpaid leave to address the employee’s “serious health condition” or
that of a family member. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,
763 (5th Cir. 2001) (quoting 29 U.S.C. § 2612(a)(1)(D)). “To ensure employees the
right to take leave, the FMLA prohibits an employer from “interfer[ing] with,
restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right”
provided by the Act.” Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017)
(quoting 29 U.S.C. § 2615(a)(1)). In order to be subject to liability under the FMLA,
one must “employ[] 50 or more employees for each working day during each of 20 or
13
more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. §
2611(4)(A)(i).
It is well-established that the plaintiff has the burden of showing that the
employer meets the “50 or more employees” statutory threshold. See Minard v. ITC
Deltacom Commc'ns, Inc., 447 F.3d 352, 357 (5th Cir. 2006) (“[T]he threshold number
of employees for application of the FMLA is an element of a plaintiff's claim for
relief”); see also Lloyd v. Swifty Transp., Inc., (7th Cir. 2009) 552 F.3d 594, 600. Here,
Plaintiff attempts to place the burden of proof on MMO, thereby failing to create any
issue of fact as to whether MMO, or MMO and Greenbrier as a single enterprise,
employed fifty or more employees. Accordingly, MMO is entitled to judgment as a
matter of law on Plaintiff’s FMLA claim.
b. Whether MMO is an “Employer” Subject to Liability under the ADEA
or ADA
The ADEA provides that it is “unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). 7
An entity cannot be held liable for discriminatory employment actions under
the ADEA unless it qualifies as an “employer” under the statute. See 29 U.S.C. § 623.
It is well-established that superficially distinct entities may be exposed to liability
upon a finding that they represent a single, integrated enterprise: a single employer.
The ADEA defines an employer as: “a person engaged in an industry affecting commerce who has twenty or more
employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.”
7
14
Trevino v. Celanese Corp., 701 F.2d 397, 403–04 (5th Cir. 1983). To determine
whether a parent corporation and its subsidiary may be regarded as a “single
employer” under the ADEA, courts consider the following four factors: “(1)
interrelation of operations, (2) centralized control of labor relations, (3) common
management, and (4) common ownership or financial control.” Id. Courts applying
these factors have focused, almost exclusively, on the second factor: centralized
control of labor relations. Id.; see also Vance v. Union Planters Corp., 279 F.3d 295,
297 (5th Cir. 2002); Chaiffetz, 798 F.2d at 735 (“We place[ ] highest importance on
the second [Trevino] factor.”). “This criterion has been further refined to the point
that [t]he critical question to be answered then is: What entity made the final
decisions
regarding
employment
matters
related
to
the
person
claiming
discrimination?” Trevino, 701 F.2d at 404 (citation omitted); see also Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 344 (5th Cir. 2007).
Here, the Court finds that Plaintiff has presented evidence of common
ownership, interrelation of operations, and, more importantly, centralized control of
labor relations between MMO and Greenbrier. First, it is uncontested that
Greenbrier was MMO’s wholly-owned subsidiary at the time of Plaintiff’s
termination. In addition, MMO’s HR Director, Unnati Umarvadia, appeared as the
only representative on behalf of Greenbrier in Plaintiff’s post-employment
proceedings held before the LWC. The Court, however, is aware that the mere
existence of common ownership and management does not, without more, justify
aggregation; rather, there must be evidence that the parent corporation was the “final
15
decision-maker in its subsidiary’s employment decisions.” Lusk v. Foxmeyer Health
Corp., 129 F.3d 773, 778 (5th Cir. 1997). Such evidence is contained in the record.
Plaintiff cites to a document titled “Separation of Employment Notice” dated July 29,
2015—Plaintiff’s date of termination. The document provides that Plaintiff was
terminated for “falsification of time card and hours worked.” Significantly, the
document bears MMO’s letterhead, lists “MMO Greenbrier Hospital” as Plaintiff’s
employer, and is signed by MMO’s HR Director. Thus, based on the Separation of
Employment Notice, an issue of fact exists as to MMO’s involvement with
Greenbrier’s personnel decisions, including to what extent MMO was the final
decision maker regarding Plaintiff’s employment with Greenbrier. See Lusk, 129 F.3d
at 778 (holding that a parent and subsidiary were not a single enterprise because the
court concluded, inter alia, that the two companies did not share the same human
resources department). Accordingly, the Court concludes that Plaintiff has cited to
specific evidence sufficient to create a genuine issue of material fact as to whether
MMO and Greenbrier are a single-enterprise. Accordingly, summary judgment on
this point is inappropriate.
Furthermore, although its applicability is not argued by either party, the Court
reaches the same conclusion with respect to MMO’s employer status under the ADA’s
“hybrid economic realities/common law control test.” In determining whether an
entity is an employer under the ADA, the Fifth Circuit applies a “hybrid economic
realities/common law control test.” Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 227 (5th Cir. 2015) (citation omitted). “The economic realities component of our
16
test has focused on whether the alleged employer paid the employee’s salary,
withheld taxes, provided benefits, and set the terms and conditions of
employment.” Id. (citation omitted). The “control” component of the test, however, is
the most important element of the analysis. Id. In examining the “control”
component, the court considers “whether the alleged employer has the right to hire
and fire the employee, the right to supervise the employee, and the right to set the
employee’s work schedule.” Id. (citation omitted).
Although Plaintiff has not provided any evidence that MMO paid her salary,
withheld taxes, provided benefits, or set the terms and conditions of employment,
Plaintiff, as discussed supra, has produced evidence sufficient to create an issue of
fact regarding MMO’s possible control over Greenbrier’s personnel decisions. See
Burton, 789 F.3d at 227 (noting that the court’s emphasis on the common law control
test is dispositive); see also Johnson v. Manpower Prof'l Servs., Inc., 442 F. App'x 977,
982 (5th Cir. 2011) (concluding that the defendant was the plaintiff’s employer based
on the common law control test although all of the factors under the economic realities
test pointed to another entity being the plaintiff’s employer). Thus, “[g]iven the
“substantial overlap in the analytical framework among the employment
discrimination statutes,” the Court is inclined to reach the same decision as to MMO’s
employer status under both the ADA and ADEA. See Burton, 789 F.3d at 227 n. 2; see
also Lusk, 129 F.3d at 778 (“The interrelation of operations element of the single
employer test ultimately focuses on whether the parent corporation . . . actually
exercised a degree of control beyond that found in the typical parent-subsidiary
17
relationship”) (emphasis added); see also Smith-Schrenk v. Genon Energy Services,
2015 WL 150727, at *11-*12 (S.D. Tex. Jan. 12, 2015) (applying the single enterprise
test, rather than the common law control test, when analyzing whether a parent
corporation was subject to suit under the ADA). Based on the foregoing, MMO is not
entitled to judgment as a matter of law as to Plaintiff’s ADEA and ADA claims.
c. LEDL Claims
The LEDL defines an “employer” as a “commercial entity . . . receiving services
from an employee and, in return, giving compensation of any kind to an employee.”
La. Stat. Ann. § 23:302(2). “Central to the determination of whether one is an
employer for purposes of the LEDL is whether the defendant paid the plaintiff’s
wages and withheld federal, state, unemployment, or social security taxes from his
check.” Dejoie v. Medley, 9 So. 3d 826, 830 (La. 2009).
Plaintiff has not created an issue of fact as to whether she provided services to
MMO and whether MMO paid her any type of compensation. In fact, Plaintiff’s W-2
tax statement reflects that Greenbrier paid Plaintiff’s wages and withheld federal,
state, unemployment, and social security taxes from her check. (Rec. Doc. 23-4).
Accordingly, MMO is entitled to judgment as a matter of law on Plaintiff’s LEDL
claims. See Langley v. Pinkerton’s Inc., 220 F. Supp. 2d 575 (M.D. La. 2002) (granting
summary judgment in favor of an alleged employer because the alleged employer
provided no compensation benefits to the plaintiff nor withheld federal, state,
unemployment, or social security taxes for Plaintiff).
18
d. Defamation
Finally, MMO seeks summary judgment with respect to Plaintiff’s defamation
claim. Plaintiff alleges that MMO made defamatory statements about her to the
LWC. MMO contends that it did not make any statements to the LWC, and that to
the extent any defamatory statements were made to the LWC, they were made by
Plaintiff’s former employer, Greenbrier. Though not fully articulated by MMO, the
Court interprets MMO’s statements as an attack on Plaintiff’s ability to establish
that MMO was the publisher of the allegedly defamatory statements.
Defamation is a tort involving the invasion of a person’s interest in his or her
reputation and good name. Costello v. Hardy, 2003-1146, p. 12, (La. 1/21/04), 864 So.
2d 129, 139. Four elements are necessary to establish a claim for defamation under
Louisiana law: (1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury. Id. (“Thus, in order to prevail on a
defamation claim, a plaintiff must prove that the defendant, with actual malice or
other fault, published a false statement with defamatory words which caused plaintiff
damages.”). If even one of the required elements of the tort is lacking, the cause of
action fails. Id. (citation omitted). When a defamatory statement is made by an
employee in the course and scope of his or her employment, the employer can be held
vicariously liability. See Trentecosta v. Beck, 96–2388 at 8–10 (La. 10/21/97), 703 So.
2d at 558–559. Under Louisiana law, “an employee’s conduct is within the course and
scope of his employment if the conduct is of the kind that he is employed to perform,
19
occurs substantially within the authorized limits of time and space, and is activated
at least in part by a purpose to serve the employer.” White v. United States, 419 F.
App'x 439, 442 (5th Cir. 2011) (quoting Orgeron v. McDonald, 639 So. 2d 224, 226–27
(La. 1994)).
As evidenced by the record, MMO’s HR Director appeared on behalf of
Greenbrier as its only representative during the proceedings before the LWC. MMO
neither disputes its HR Director’s participation in the LWC proceedings nor argues
that its HR Director’s statements to the LWC were made outside the scope of her
employment. Thus, it follows that to the extent any defamatory statements were
made to the LWC, they were made by MMO’s HR Director, acting within the scope of
her employment for the benefit of Greenbrier. Importantly, the fact that MMO’s HR
Director made statements as a representative of Greenbrier—rather than MMO—
does not absolve MMO of liability for the alleged tortious conduct of its employee. See
Ermert v. Hartford Ins. Co., 559 So. 2d 467, 476–77 (La. 1990) (“Because vicarious
liability is imposed based upon the attribution of business-related risks to the
enterprise, specific conduct may be considered within the scope of employment even
though it is done in part to serve the purposes of the servant or of a third person.”).
Therefore, the Court finds that MMO is not entitled to judgment as a matter of law
with respect to Plaintiff’s defamation claim.
II.
Greenbrier’s Rule 12(b)(5) Motion to Dismiss for Failure to Timely
Serve
Greenbrier asks the Court to dismiss Plaintiff’s claims against it for
insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5)
20
due to Plaintiff’s failure to effect timely service under Rule 4(m). 8 Pursuant to Rule
4(m), a district court has two choices when a plaintiff fails to serve a defendant within
90 days: it may either “dismiss the action without prejudice . . . or direct that service
be effected within a specified time.” Fed. R. Civ. P. 4(m); Foster v. Rescare, No. 16670, 2016 WL 3388387, at *3 (E.D. La. June 20, 2016). If, however, the plaintiff shows
good cause for the failure, the district court must extend the time of service for an
appropriate period. Id.; see also Grimball v. New Orleans City, No. 10-3657, 2012 WL
1397678, at *5 (E.D. La. Apr. 23, 2012) (citing Thompson v. Brown, 91 F.3d 20, 21
(5th Cir. 1996)). The plaintiff has the burden of proving good cause for failure to effect
timely service. Foster, 2016 WL 3388387, at *3 (citing Sys. Signs Supplies v. U.S.
Dep’t of Justice, Washington, D.C., 903 F.2d 1011, 1013 (5th Cir. 1990)). “‘[G]ood
cause’ under Rule 4(m) requires ‘at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance
of the rules usually does not suffice.’” Grimball, 2012 WL 1397678, at *5 (citing
Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995)). This Court has
determined that “[t]o demonstrate good cause, a plaintiff must ‘make a showing of
good faith and show some reasonable basis for noncompliance within the time
specified.” Foster, 2016 WL 3388387, at *3 (citing Sys. Signs Supplies, 903 F.2d at
1013). Thus, “one is required to be diligent in serving process, as well as pure of heart,
before good cause will be found.” Grimball, 2012 WL 1397678, at *5 (citing Resolution
“If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).
8
21
Trust Corp. v. Starkey, 41 F.3d 1018, 1022 (5th Cir. 1995)). Where a party requests
an extension of time, relevant factors used to determine whether there has been
“excusable neglect” include: “‘the danger of prejudice to the [non-movant], the length
of the delay and its potential impact on the judicial proceedings, the reason for the
delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.’” Id. (quoting Adams v. Travelers Indem. Co.
of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006)).
It is undisputed that Plaintiff did not effectuate timely service of the amended
complaint on Greenbrier. 9 Nevertheless, the Court need not address whether Plaintiff
has demonstrated “good cause” for her failure to properly serve Greenbrier within the
90-day window provided by Rule 4(m). Assuming arguendo, that “good cause” did not
exist, the Court has broad discretion in determining whether dismissal for failure to
timely serve is warranted. See George v. U.S. Dep’t of Labor, 788 F.2d 1115, 1116 (5th
Cir. 1986). As a general matter, this Court denies motions to dismiss under Rule
12(b)(5), and grants plaintiffs additional time to properly complete service, unless
there is a clear showing of prejudice to the defendant. See Gabriel v. United Nat'l Ins.
Co., 259 F.R.D. 242, 245 (E.D. La. 2009) (additional time granted due to a lack of
prejudice to the defendant, and delay was not caused by intentional conduct);
Roulston v. Yazoo River Towing, Inc., No. 03-2791, 2004 WL 1043140, at *2 (E.D. La.
May 6, 2004) (additional time granted where defendant did not demonstrate
Although Plaintiff was granted leave to file an amended complaint naming Greenbrier as a defendant on February 6,
2017, Plaintiff did not serve Greenbrier until August 24, 2017. Accordingly, Plaintiff failed to serve Greenbrier within
the 90-day timeframe as required under Fed. R. Civ. P. 4(m).
9
22
prejudice); Alden v. Allied Adult & Child Clinic, L.L.C., No. 01-371, 2002 WL
1684553, at *2 (E.D. La. July 22, 2002) (dismissal denied due to a lack of prejudice to
the defendant).
Here, Greenbrier has made no assertion that it would be prejudiced if this
Court granted Plaintiff additional time to properly complete service. Further, service
has been perfected in this case—albeit late—and the Court does not find that
dismissal is warranted for the now-repaired defect in service. Peters v. St. Charles
Par. Sch. Dist., No. CV 15-6600, 2017 WL 1250961, at *4 (E.D. La. Apr. 5, 2017).
Accordingly, the Court will not dismiss Plaintiff’s complaint on the basis that it was
served outside of Rule 4(m)’s 90-day window.
III.
Greenbrier’s Rule 12(b)(6) Motion to Dismiss for Failure to State a
Claim
a. Plaintiff’s Claims Under the ADEA and ADA
Greenbrier contends that the Court should dismiss Plaintiff’s ADA and ADEA
claims because Plaintiff failed to exhaust her administrative remedies against
Greenbrier by failing to name Greenbrier in Plaintiff’s EEOC Charge. 10 This Court
agrees.
It is undisputed that Plaintiff failed to name Greenbrier in the EEOC charge. Greenbrier attached Plaintiff’s EEOC
complaint to its motion to dismiss. A court may take judicial notice of EEOC documents as a matter of public record
when deciding a Rule 12(b)(6) motion. See Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir.1994); see also Prewitt
v. Cont'l Auto., 927 F. Supp. 2d 435, 447 (W.D. Tex. 2013). Therefore, the Court’s reference to EEOC documents
does not convert Greenbrier’s 12(b)(6) motion into a motion for summary judgment. See Funk v. Stryker Corp., 631
F.3d 777, 780 (5th Cir.2011) (“[T]he district court's application of judicial notice [to public records] did not transform
the motion to dismiss into a motion for summary judgment.”). Accordingly, this Court takes judicial notice of the
EEOC documents attached to Greenbrier’s motion to dismiss merely for the purpose of determining whether Plaintiff
has exhausted her administrative remedies against Greenbrier.
10
23
Employment discrimination plaintiffs must exhaust administrative remedies
before pursuing claims in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376,
378–79 (5th Cir. 2002). Exhaustion occurs when the plaintiff files a timely charge
with the EEOC and receives a statutory notice of right to sue. Id. (citing Dao v.
Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996)). The ADA and
ADEA require a party to file a charge of discrimination with the EEOC as a
prerequisite to filing suit. See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir.
1996); see also Stith v. Perot Sys. Corp., 122 F. App'x 115, 118 (5th Cir. 2005) (“Filing
a charge with the EEOC is a condition precedent to the filing of a title VII or ADEA
suit.”). Typically, a party not named in an EEOC charge may not be sued under the
ADA or ADEA. See E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
However, an EEOC charge against one entity is sufficient to exhaust administrative
remedies as to a different unnamed entity if there is a “clear identity of interest”
between the two. See id. at 481-82; see also Hartz v. Adm'rs of the Tulane Educ.
Fund., 275 F. App'x 281, 286 (5th Cir. 2008); see also Nigro v. St. Tammany Par.
Hosp., 377 F. Supp. 2d 595, 600 (E.D. La. 2005) (noting that a party not named in an
EEOC charge may not be sued unless there is a clear identity of interest between it
and the party named in the charge or it has unfairly prevented the filing of an EEOC
charge). In deciding whether an unnamed party may be sued under the ADA or
ADEA, courts consider the following factors:
(1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of
the EEOC complaint; (2) whether under the circumstances, the
interests of a named [party] are so similar as the unnamed party's that
24
for the purpose of obtaining voluntary conciliation and compliance it
would
be
unnecessary
to
include
the unnamed party
in
the EEOC proceeding;
(3)
whether
its
absence
from
the EEOC proceedings resulted in actual prejudice to the interests of
the unnamed party; (4) whether the unnamed party has in some way
represented to the complainant that its relationship with the
complainant is to be through the named party.
Simbaki, Ltd., 767 F.3d at 482-83.
Plaintiff alleges that MMO and Greenbrier utilized common management and
had centralized control of their labor relations. Plaintiff contends that MMO’s Human
Resource Director, Unnati Umarvadia, authorized Plaintiff’s termination, signed the
termination notice, testified at the unemployment hearing on behalf of Greenbrier,
and was actively involved in all decisions concerning Plaintiff’s employment with
Greenbrier. This alleged conduct all occurred during 2015, which was months before
Plaintiff filed her EEOC complaint against MMO on March 13, 2016. Importantly,
MMO and Greenbrier were legally distinct entities at the time Plaintiff filed her
EEOC complaint. 11 Although, Plaintiff’s allegations, taken as true, possibly establish
that MMO and Greenbrier may have shared a clear identity of interest in the past,
the Court finds that they are insufficient to cure Plaintiff’s failure to name Greenbrier
in the EEOC charge. At the time Plaintiff filed her EEOC charge against MMO, MMO
was no longer the owner of Greenbrier, and Plaintiff has not alleged that she was
ever prevented from identifying and naming her actual employer—Greenbrier—in
her charge. See Hartz v. Administrators of Tulane Educational Fund, 275 Fed. Appx.
281, 287 (5th Cir. 2008); see Ferrell v. Shell Oil Co., No. CIV.A. 95-0568, 1995 WL
Further, Plaintiff admits in her opposition that “the transaction whereby MMO spun off Greenbrier occurred on
November 10, 2015.” Plaintiff filed her EEOC complaint on March 13, 2016.
11
25
739878, at *5 (E.D. La. Dec. 12, 1995). Accordingly, the Court finds that Plaintiff has
failed to administratively exhaust her remedies against Greenbrier.
b. Plaintiff’s LEDL and Defamation Claims
Next, MMO argues that Plaintiff’s defamation and LEDL claims are
prescribed. A motion to dismiss may be granted on a statute of limitations defense
where it is evident from the pleadings that the action is time-barred, and the
pleadings fail to raise some basis for tolling. Taylor v. Bailey Tool Mfg. Co., 744 F.3d
944, 946 (5th Cir. 2014) (citing Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)).
Defamation is a tort under Louisiana law subject to a one-year prescriptive
period that begins to run from the date on which the injury or damage is sustained.
La. Civ. Code art. 3492. The LEDL likewise imposes a one-year prescriptive period
for filing an employment discrimination claim. La. R.S. 23:203(D). However, the
LEDL’s one-year prescriptive period is suspended for up to six months during the
pendency of any administrative review or investigation by the EEOC. Id. Thus, at the
very latest, employment discrimination claims under the LEDL must be filed within
eighteen months of the alleged discriminatory misconduct. See Kirkland v. Big Lots
Stores, Inc., No. CIV. 12-00007, 2013 WL 495782, at *4 (W.D. La. Feb. 7, 2013).
The prescriptive period on Plaintiff’s LEDL claim began to accrue on her
termination date of July 29, 2015. The prescriptive period on Plaintiff’s defamation
claim also began to accrue on July 29, 2015, as this is the date on which Plaintiff
alleges that Greenbrier made defamatory statements about her to the LWC.
Nevertheless, Plaintiff did not file suit against Greenbrier until February 6, 2017,
which was more than six months after the expiration of the prescriptive period for
26
her defamation claim, more than four months after the LEDL’s prescriptive period
had lapsed, and more than eighteen months after the alleged discriminatory conduct
occurred. 12 Accordingly, the Court finds that Plaintiff’s defamation and LEDL claims
are prescribed.
c. The First Amended Complaint does not relate back to the
original complaint
Plaintiff acknowledges that all of her state law claims are prescribed unless
the Court finds that the claims in her first amended complaint against Greenbrier
relate back to her original complaint. 13 Plaintiff bears the burden of showing that the
amended complaint relates back. Searls v. Insureco Agency and Insurance Services,
Civil Action No. 07–4250, 2009 WL 35340 at *2 (E.D.La. Jan. 6, 2009) (citing Dodson
v. Hillcrest Securities, Nos. 92–2353, 92–2381, 1996 WL 459770 at *10 (5th Cir. July
24, 1996)).Whether an amendment relates back to the date of the original complaint
is governed by Rule 15(c) of the Federal Rules of Civil Procedure. Specifically, the
Rule provides:
(1) An amendment to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back;
(B) 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; or
Plaintiff filed an EEOC charge against MMO 182 days later on January 27, 2016. By filing this EEOC complaint,
the statute of limitations was tolled until March 29, 2016 when the EEOC issued the Dismissal and Notice of Right to
Sue.
13
The doctrine of “relation back” allows an amendment to a pleading to relate back to the date of the original
complaint, for statute of limitations purposes, under standards set out in Rule 15(c) of the Federal Rules of Civil
Procedure. E.g., Sanders-Burns v. City of Plano, 594 F.3d 366, 372–72 (5th Cir. 2010).
12
27
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper
party’s identity.
Fed. R. Civ. P. 15(c)(1)(C) (emphasis added).
Here, Plaintiff amended her complaint to add Greenbrier as a defendant.
Therefore, the relevant provision is 15(c)(1)(C). This Court has previously stated the
relation back test as “when an amended complaint changes the name of a party or
substitutes a new party, (1) it must arise out of the same circumstances asserted in
the original pleading, (2) the new party must have received sufficient notice of the
action so as not to be prejudiced, (3) the proper party must at least have constructive
knowledge that but for a mistake concerning the identity of the proper party, suit
would have been brought against it, and (4) the second and third requirements must
occur within 120 days of the original complaint, or longer if good cause is shown.”
First Emmanuel Baptist Church v. Colony Ins. Co., No. 07–8841, 2008 WL 4948778,
at *2 (E.D. La. Nov. 18, 2008) (Africk, J.) (quoting Allstate Ins. Co. v. Torres, No. 06–
5206, 2007 WL 3102791, at *3 (E.D. La. Oct. 23, 2007)).
Greenbrier contends that Plaintiff’s amended complaint does not relate back
to Plaintiff’s original complaint because Greenbrier did not have timely notice of the
first amended complaint and Plaintiff did not make a “mistake” concerning the
identity of the proper party. This Court finds that the amended complaint does not
28
relate back to the date of filing the original complaint because Greenbrier did not
receive notice of the first amended complaint within the time period provided by Rule
4(m) for serving the summons and complaint as is required by Rule (c)(1)(C). Plaintiff
filed the first amended complaint naming Greenbrier as a defendant on February 6,
2017. In order to comply with Rule (c)(1)(C), Plaintiff would have had to give
Greenbrier notice of the action by May 7, 2017. However, Plaintiff did not request
issuance of summons until August 17, 2017 and did not effect service on Greenbrier
until August 24, 2017. Thus, Greenbrier did not have timely notice of the action.
Even if Plaintiff had presented evidence to show that Greenbrier and MMO
shared an identity of interest at the time litigation against MMO was commenced,
notice upon MMO will be imputed to Greenbrier only if MMO was served with the
original complaint within the time period provided by Rule 4(m), i.e., within 90 days
of commencement of the action. See Searls v. Insureco Agency and Ins. Services, 2009
WL 35340, *4 (E.D. La. Jan. 6, 2009). Here, the record reflects that Plaintiff filed suit
against MMO on June 24, 2016 and served MMO on September 26, 2016—94 days
after Plaintiff filed her original complaint and, thus, after the Rule 4(m) deadline.
Because MMO did not receive notice of the action within the time period provided by
Rule 4(m), it follows that Greenbrier also did not receive such notice. Accordingly, the
amended complaint naming Greenbrier as a defendant does not relate back to the
date of filing the original complaint. See Searls, 2009 WL 35340, *4 (concluding that
an amended complaint naming a second defendant did not relate back to the original
29
complaint where the plaintiff failed to serve the original complaint on the original
defendant within the time required under Rule 4(m)).
d. Plaintiff fails to state a claim against Greenbrier
Greenbrier argues that Plaintiff’s conclusory facts alleged in the amended
complaint are insufficient to support an FMLA claim against Greenbrier. This Court
agrees. Though Plaintiff alleges that she had bone spurs and plantar fasciitis, she
provides no facts regarding her leave of absence or additional leave that was
requested and denied.
Nevertheless, “[d]ismissal is a harsh remedy … and the Court is cognizant of
the Fifth Circuit’s instruction that a motion to dismiss under Rule 12(b)(6) ‘is viewed
with disfavor and is rarely granted.’” Mays v. Bd. of Commissioners Port of New
Orleans, No. CIV.A. 14-1014, 2015 WL 1245683, at *7 (E.D. La. Mar. 18, 2015)
(quoting Beanal v. Freeport–McMoran, Inc., 197 F.3d 161, 164 (5th Cir.1999)). In lieu
of granting a motion to dismiss, a court may grant a plaintiff leave to amend her
complaint. See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006).
Accordingly, the Court will grant Plaintiff leave to file a second amended complaint,
if she chooses to do so, to sufficiently allege her FMLA claims against Greenbrier.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant MMO’s Motion for Summary
Judgment (Rec. Doc. 23) is GRANTED IN PART as to Plaintiff’s FMLA and LEDL
30
claims against MMO; and DENIED IN PART as to Plaintiff’s ADA, ADEA, and
defamation claims against MMO.
IT IS FURTHER ORDERED that Defendant Greenbrier’s Motion to Dismiss
(Rec. Doc. 36) is GRANTED IN PART as to Plaintiff’s ADA, ADEA, defamation, and
LEDL claims against Greenbrier, which are DISMISSED with prejudice; and
DENIED IN PART as to Plaintiff’s FMLA claim. Plaintiff may file a second amended
complaint sufficiently alleging her FMLA claim against Greenbrier within 21 days of
this date.
New Orleans, Louisiana, this 9th day of November, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
31
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