BURTON v. SD WARREN COMPANY

Filing 80

ORDER ON PENDING MOTIONS AND TO SHOW CAUSE re 48 Motion to Dismiss for Failure to State a Claim; re 63 Motion for Leave to File By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DALE E. BURTON,
Plaintiff,
v.
SD WARREN COMPANY d/b/a
SAPPI FINE PAPER NORTH
AMERICA
Defendant.

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ORDER ON PENDING MOTIONS AND TO SHOW CAUSE
On March 6, 2017, four days after Defendant SD Warren, Company (“Sappi”)
terminated Plaintiff Dale Burton’s (“Burton”) employment, Burton requested medical
leave through the Family Medical Leave Act (the “FMLA”). Sappi denied Burton’s
request. In his Second Amended Complaint,1 (ECF No. 43), Burton asserts that his
termination violated the “FMLA,” 29 U.S.C.A. § 2611, et seq. (2018) (Count I); as well
as the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101, et seq. (2018),
and the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551, et seq. (2018) (Count
II). On January 23, 2018, Sappi moved to dismiss the Second Amended Complaint
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) upon which relief can
be granted (ECF No. 48). On April 26, a few hours after the hearing was held on the

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Burton filed a proposed First Amended Complaint (ECF No. 36-1) with the Court in June, 2017, along with a
request that it be considered only in the event that an earlier filed Motion to Stay was denied. The Motion to Stay
was granted by an order dated July 26, 2017, which also stated that “Burton’s [proposed First Amended
Complaint], to the extent that it could be construed as a motion for leave to amend, is denied as moot.” See ECF
No. 42 at 2.

Motion to Dismiss, Burton filed a Motion for Leave to File an Amended Complaint
(ECF No. 63).
After careful consideration of the parties’ respective arguments, it is ORDERED
as follows:
1. Plaintiff Dale E. Burton’s Motion for Leave to File an Amended Complaint
(ECF No. 63) is GRANTED. Plaintiff shall file his Third Amended Complaint
within 3 days of this Order.
2. Defendant SD Warren Company’s Motion to Dismiss the Second Amended
Complaint (ECF No. 48) is DENIED as moot.
3. On or before September 4, 2018, Plaintiff shall show cause as to and address:
A. Why he failed to plead in his Second Amended Complaint the new
allegations pleaded in his Third Amended Complaint which, as explained
in his filings with the Court, were based in whole or in part on records that
were in his possession before he filed his Second Amended Complaint.
B. Whether Plaintiff should be ordered to pay to the defendant its reasonable
attorney’s fees and costs incurred in prosecuting its Motion to Dismiss the
Second Amended Complaint and all related matters as a sanction for
Plaintiff’s failure to plead facts that were known or should have been known
to him at the time the Second Amended Complaint was filed. Plaintiff
should also address whether, in the event an award is ordered, the award
of fees and costs should be assessed against the Plaintiff individually or his
counsel.
4. Within fourteen (14) days of Plaintiff’s submission pursuant to paragraph 3,
Defendant shall file its memorandum in response together with an affidavit
setting forth its legal fees and costs incurred in connection with the filing and
prosecution of its Motion to Dismiss the Second Amended Complaint and all
related matters.
5. Within five (5) days of the filing of Defendant’s memorandum and affidavit,
Plaintiff may file a memorandum in reply.
SO ORDERED.

Dated: August 23, 2018
/s/ JON D. LEVY
U.S. DISTRICT JUDGE
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