Quarles v State of Maryland et al
Filing
27
MEMORANDUM AND ORDER granting 23 Motion of defendant to Dismiss Second Amended Complaint. Signed by Judge Marvin J. Garbis on 12/4/2014. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JACQUELINE R. QUARLES
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Plaintiff
vs.
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MARYLAND DEPARTMENT OF
HUMAN RESOURCES
CIVIL ACTION NO. MJG-13-3553
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*
Defendant
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*
*
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendant Maryland Department of
Human Resources' Motion to Dismiss Second Amended Complaint
[Document 23] and the materials submitted relating thereto.
The
Court finds a hearing unnecessary.
BACKGROUND1
I.
A.
Factual Allegations
Plaintiff Jacqueline R. Quarles ("Quarles") began working
for Defendant Maryland Department of Human Resources ("MDHR") in
1977.
Second Am. Compl. ("SAC") ¶ 3.
In 1995, Quarles became a
Computer Network Specialist in MDHR's Office of Technology for
Human Resources.
Id.
At a time not specified in the Second
Amended Complaint ("SAC"), Quarles "was employed as a Computer
1
The "facts" herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendant.
Network Specialist II [("CNS II")] under the supervision of
Isabel Fitzgerald," ("Fitzgerald").2
Id. ¶ 5.
In or around 2005, Quarles was diagnosed with diabetes.
Id. ¶¶ 9, 18.
Quarles's diabetes "limits her abilities to move
freely, walk steps, or travel from building to building."
44.
Id. ¶
In 2005, Quarles was assigned a "sedentary position [in
security] as an accommodation for her disability."
Id. ¶ 7.
In May 2010, Fitzgerald removed Quarles from her sedentary
assignment and "assigned her to a building with five (5) floors
that required [Quarles] to go on all 5 floors in addition to
duties in other parts of the state."3
Id. ¶¶ 7-8.
The SAC states that, at an unspecified time, "Ms. Quarles
requested an accommodation from Ms. Fitzgerald but Ms.
Fitzgerald denied the accommodation."
Id. ¶ 22.
However, the
SAC also states that, at an unspecified time, Fitzgerald offered
Quarles an "unacceptable" accommodation that "would [have]
result[ed] in a demotion of eleven to twelve grades."
Id. ¶ 29.
As to the need for an accommodation, the SAC states that
"[w]ith a minor accommodation, Ms. Quarles could perform all the
essential functions of a Computer Network Specialist."
34.
Id. ¶
However, the SAC seems to state that at some unspecified
2
The Second Amended Complaint ("SAC") is not clear as to
when Quarles became a Computer Network Specialist II and whether
she held that title during the relevant time period(s) at issue.
3
The SAC is not clear as to whether the May 2010
reassignment was a reassignment from CNS II to another position.
2
time, apparently in or about 2010, "Quarles sent management a
medical note indicating that Ms. Quarles could work as a CNS II
operative without restriction."4
Id. ¶¶ 18 -19.
The SAC states that MDHR "alleged that Ms. Quarles' actions
were erratic, belligerent, and hostile behavior [sic] towards
management."
Id. ¶ 17.
While Quarles was out on medical leave
in March 2010, MDHR noted that when "management attempted to
meet with Ms. Quarles . . . she refused to attend" and that
Quarles "left threatening voicemail messages . . . became
increasingly combative, raised her voice, and often hung up the
phone on members of management."
Id. ¶ 20.
In a letter dated December 6, 2010, MDHR informed Quarles:
1.
that she was being referred to the
Maryland
Division
of
Rehabilitation
Services
"'to
pursue
and
follow
alternative placement;'" and
2.
that she "'ha[d] until January 3, 2011
to separate from your current position,
[or MDHR would] take appropriate steps
to vacate it.'"
Id. ¶ 38.
On December 27, 2010, Quarles filed a Charge of
Discrimination with the United States Equal Employment
Opportunity Commission ("EEOC").
Id. ¶¶ 6, 64.
4
Quarles retired
The SAC states that Quarles had difficulty locating the
doctor who diagnosed her diabetes in 2005 but that "she was able
to get this physician to confirm [her] diabetes." SAC ¶ 18.
3
from MDHR on January 3, 2011 because she "had no alternative."
Id. ¶ 38.
B.
Procedural Posture
Quarles filed the Complaint [Document 1], followed by the
Amended Complaint [Document 5].
On January 31, 2014, MDHR filed
a Motion to Dismiss [Document 12].
Quarles was then granted
leave to file the Second Amended Complaint ("SAC")[Document 20].
On April 28, 2014, Quarles filed the SAC [Document 21],
presenting claims in three Counts:
Count One
Violation of the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq.
Count Two
Wrongful Termination
(under the Americans with Disabilities Act)
Count Three
Retaliation
(under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.)
By the instant Motion, MDHR seeks dismissal of all claims
in the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6).
II.
DISMISSAL STANDARD
A motion to dismiss filed pursuant to Federal Rule5 of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
A complaint need only contain "'a short and plain statement of
the claim showing that the pleader is entitled to relief,' in
5
All "Rule" references herein are to the Federal Rules of
Civil Procedure.
4
order to 'give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'"
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted).
When evaluating a 12(b)(6) motion to
dismiss, a plaintiff's well-pleaded allegations are accepted as
true and the complaint is viewed in the light most favorable to
the plaintiff.
However, conclusory statements or "a formulaic
recitation of the elements of a cause of action will not
[suffice]."
Id.
A complaint must allege sufficient facts "to
cross 'the line between possibility and plausibility of
entitlement to relief.'"
Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is "'a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.'"
Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Thus, if
"the well-pleaded facts [contained within a complaint] do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not 'show[n]'
– 'that the pleader is entitled to relief.'"
original)).
5
Id. (alteration in
III. DISCUSSION
A.
Jurisdiction
The SAC does not, on its face, establish subject matter
jurisdiction over the instant lawsuit due to the absence of an
allegation that Quarles received, or was entitled to receive, a
right-to-sue letter.
See Davis v. N.C. Dep't of Correction, 48
F.3d 134, 140 (4th Cir. 1995) (noting, in a Title VII case, that
"receipt of, or at least entitlement to, a right-to-sue letter
is a jurisdictional prerequisite that must be alleged in a
plaintiff's complaint.").6
However, MDHR has attached to the instant Motion, a copy of
the Charge of Discrimination filed with the EEOC, along with a
Notice of Right to Sue issued to Quarles, upon her request, on
September 13, 2013.
See [Document 23-2].
The Court will, therefore, consider the record to reflect
that it has subject matter jurisdiction.
B.
Americans with Disabilities Act Claims – Counts I & II
Counts I and II must be dismissed due to the failure of the
SAC to allege:
A plausible claim that Quarles is entitled to
protection under the Americans with Disabilities Act
6
The Americans with Disabilities Act incorporates the
procedural requirements of Title VII. See, e.g., 42 U.S.C. §
12117(a); Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th
Cir. 1999).
6
because she had a physical impairment that
substantially limited a major life activity; or
A plausible claim that Quarles is entitled to
protection under the Americans with Disabilities Act
because she was regarded as being disabled.
The Americans with Disabilities Act ("ADA") prohibits
"discriminat[ion] against a qualified individual on the basis of
disability in regard to[, inter alia,] the hiring, advancement,
or discharge of employees . . . and other terms, conditions, and
privileges of employment."
42 U.S.C. § 12112(a).
A plaintiff
who brings claims under the ADA for failure to accommodate and
wrongful termination must establish that she is a "qualified
individual with a disability."7
7
To establish a prima facie case of failure to accommodate
under the ADA, a plaintiff must show:
"(1) that he was an individual who had a
disability within the meaning of the
statute;
(2)
that the [employer] had notice of his
disability;
(3)
that with reasonable accommodation he
could perform the essential functions
of the position ...; and
(4)
that the [employer]
such accommodations."
refused
to
make
Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001)
(quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d
1, 6 (2d Cir. 1999) (alterations in original)).
To establish a prima facie case of wrongful termination
under the ADA, a plaintiff must show that:
7
1.
Individual with a Disability
An individual has an ADA-qualifying disability if she:
(A)
[has] a physical or mental impairment
that substantially limits one or more
major
life
activities
of
such
individual;
(B)
[has] a record of such an impairment;
or
(C)
[is]
regarded
impairment.
as
having
such
an
42 U.S.C. § 12102(1).
a.
Impairment
"An impairment is a disability [under the ADA] if it
substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population."
29 C.F.R. § 1630.2(j)(1)(ii).
"'[M]ajor life
activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
(1)
she was a "qualified individual with a
disability";
(2)
she was discharged;
(3)
she was fulfilling her employer's
legitimate expectations at the time of
discharge; and
(4)
the circumstances of her discharge
raise a reasonable inference of
unlawful discrimination.
Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 n.9 (4th
Cir. 2004).
8
walking, standing, lifting, [and] bending . . . ."
12102(2)(A).
42 U.S.C. §
"[T]he operation of a major bodily function, [such
as] respiratory, circulatory, [and] endocrine" functions, also
qualifies as a major life activity.
Id. § 12102(2)(B).
An individual who is a diagnosed diabetic is not per se
disabled under the ADA.
See Schneider v. Giant of Maryland,
LLC, 389 F. App'x 263, 268 (4th Cir. 2010) (per curiam);
Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006); Miller v.
Verizon Commc'ns, Inc., 474 F. Supp. 2d 187, 197 (D. Mass.
2007).
Rather, "the analysis of whether diabetes is a qualified
disability under the ADA is fact-specific."
Schneider, 389 F.
App'x at 268; see also Carreras v. Sajo, Garcia & Partners, 596
F.3d 25, 34 (1st Cir. 2010); Fraser v. Goodale, 342 F.3d 1032,
1041-42 (9th Cir. 2003); Gonzalez v. Sears Holding Co., 980 F.
Supp. 2d 170, 184-85 (D.P.R. 2013).8
8
The ADA Amendments Act of 2008 ("ADAAA") took effect on
January 1, 2009. See Pub.L. No. 110–325, § 8; 122 Stat. 3553,
3553 (Sept. 25, 2008). The ADAAA expresses congressional
concern that case law from the U.S. Supreme Court had "narrowed
the broad scope of protection intended to be afforded by the
ADA, thus eliminating protection for many individuals whom
Congress intended to protect." Id. The ADAAA "reject[ed] the
standards enunciated" in previous Supreme Court cases and stated
that "[t]he definition of disability [under the ADA] shall be
construed in favor of broad coverage of individuals." 122 Stat.
3553; see Summers v. Altarum Inst., Corp., 740 F.3d 325, 329
(4th Cir. 2014).
The Court was unable to locate a federal trial or appellate
court decision applying the post-ADAAA version of the ADA to a
disability discrimination claim with diabetes as the qualifying
disability. However, even after enactment of the ADAAA, an
individual is not disabled under the ADA unless the individual
9
The SAC states only that:
Quarles was diagnosed with diabetes in
2005; and
The diabetes "limits her abilities to
move freely, walk steps, or travel from
building to building."
SAC ¶¶ 9, 18, 44.
The SAC lacks specific factual allegations regarding the
type of diabetes from which Quarles suffers, the degree to which
the diabetes limits her movement, or how her diabetes otherwise
affects her life.9
The SAC does not state that Quarles's
diabetes "substantially limits" her ability to walk, rather than
merely "limit[ing]" that ability.
Cf. Schneider, 389 F. App'x
at 269 (affirming summary judgment for the defendant employer
because "Schneider claimed that [his Type 1] diabetes affected
his walking, standing, and digestion, but presented no evidence
that those activities were substantially limited in August 2005
such that his condition became disabling within the ADA").
can show that she has "a physical or mental impairment that
substantially limits one or more major life activities." 42
U.S.C. § 12101(1)(A).
9
Nor, does Quarles refer to being substantially limited in
eating or in the function of her endocrine system, two major
life activities often cited by individuals with diabetes who
bring ADA claims. See, e.g., Rohr v. Salt River Project Agric.
Imp. & Power Dist., 555 F.3d 850, 858 (9th Cir. 2009) ("Diabetes
is a 'physical impairment' because it affects the digestive,
hemic and endocrine systems, and eating is a 'major life
activity.' Whether Rohr's [Type 2] diabetes substantially
limits his eating is an 'individualized inquiry.' Once an
impairment is found, the issue is whether Rohr's diabetes
substantially limits his activity of eating.").
10
Walking is a major life activity.
However, an allegation
of some walking limitation is not an allegation of specific
facts that create a plausible claim of a substantial walking
limitation.
Cf. Fraser, 342 F.3d at 1040 ("[E]ating is a major
life activity. However, eating specific types of foods, or
eating specific amounts of food, might or might not be a major
life activity. If a person is impaired only from eating
chocolate cake, he is not limited in a major life activity
because eating chocolate cake is not a major life activity.");
Miller, 474 F. Supp. 2d at 196 (concluding, on summary judgment,
that "Plaintiff's diabetes places no more than negligible
limitations on her day to day activities," in part because
"Plaintiff offers no documentation, medical or otherwise, in
support of [her] assertions" that her diabetes limited her
"basic mobility").
The SAC does not contain adequate factual allegations to
present a plausible claim that Quarles is disabled under the ADA
because her diabetes substantially limited her in a major life
activity.
b.
"Regarded as" being disabled
Quarles contends that, even if she did not have a physical
impairment that substantially limited a major life activity,
MDHR "regarded" her as being disabled under 42 U.S.C. §
11
12102(1)(C).
Quarles states that MDHR previously gave her an
accommodation and "said to the EEOC that [she] had a qualified
disability."
[Document 25] at 10; see also SAC ¶¶ 7, 9.
However, Quarles misconstrues "being regarded as having" as that
phrase is used to define a disabled individual under the ADA.
To present a plausible claim that MDHR regarded her as
being disabled, Quarles must allege specific facts indicating
that MDHR:
(1)
"mistakenly believe[d] that [she] has a
physical
impairment
that
substantially
limits one or more major life activities,"
or
(2)
"mistakenly
believe[d]
that
an
actual,
nonlimiting impairment substantially limits
one or more major life activities."
Rhoads v. F.D.I.C., 257 F.3d 373, 390-91 (4th Cir. 2001)
(citation omitted) (alteration in original); see also 42 U.S.C.
§ 12102(3)(A).
Thus, "when an employee [contends] that he was
regarded as disabled, the analysis 'focuses on the reactions and
perceptions of the . . . decisionmakers' who worked with the
employee."
Wilson v. Phoenix Specialty Mfg. Co., 513 F.3d 378,
384-85 (4th Cir. 2008) (citation omitted).
Quarles has not alleged specific facts presenting a
plausible claim (1) that MDHR mistakenly believed she had
diabetes or (2) that her diabetes was not a limiting impairment,
yet MDHR mistakenly believed that it was.
Cochran v. Holder,
436 F. App'x 227, 233 (4th Cir. 2011) ("Cochran must show that
12
the USMS 'entertain[ed] misperceptions about [him]' by believing
he had a 'substantially limiting impairment' that he did not in
fact have or that was not 'so limiting.'" (citation omitted)
(alteration in original)).
Quarles offers no legal authority supporting her argument
that "regarded as" being disabled means she is disabled under
the ADA because at some point, MDHR allegedly "acknowledge[d to
the EEOC] that Ms. Quarles has an ADA disability."
SAC ¶ 9.
Moreover, the SAC presents no specific factual allegations
supporting the conclusory assertion that MDHR regarded Quarles
as being disabled because it assigned her to a sedentary
position in 2005 as an accommodation for her diabetes.
The SAC
does not present specific factual allegations regarding whether
MDHR mistakenly believed that Quarles had a substantially
limiting impairment or merely complied with Quarles's request
for a sedentary positon without such a belief.
Cf. Cochran, 436
F. App'x at 233 ("Simply believing Cochran had an impairment is
not enough under this inquiry.
Rather, Cochran must prove that
the USMS believed his hearing condition 'substantially limit[ed]
a major life activity.'" (alteration in original)).
Finally, the allegations in the SAC regarding the
"reactions and perceptions" of MDHR employees in the spring of
2010 indicate that Quarles was not regarded by MDHR as having a
disability.
In fact, the SAC states that Fitzgerald referred
13
Quarles "to the State's physician to confirm Ms. Quarles'
diagnosis of diabetes" and "to a neurologist and a behavior
specialist for a mental examination."
SAC ¶¶ 9-10.
The SAC
does not present factual allegations that would support a
plausible claim that, despite not being advised that Quarles was
disabled, MDHR nevertheless believed that she was disabled.
In sum, the SAC does not contain adequate factual
allegations to support a plausible claim that Quarles is
disabled under the ADA because MDHR regarded her as being
disabled.
Accordingly, the Court finds that Quarles has not presented
a plausible claim that she is disabled under the ADA.10
2.
Qualified Individual
The ADA prohibits discrimination against a "qualified"
individual with a disability.
42 U.S.C. § 12112(a).
A
"qualified individual" is one "who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."
42
U.S.C. § 12111(8).
10
The Court need not address whether Quarles is "disabled"
under the third definition of disability – having "a record of
[a disability]" 42 U.S.C. § 12102(1)(B) - because the SAC does
not present this as a basis for establishing that Quarles is
disabled.
14
Quarles contends that she "could work as a CNSII operator"
and "could do all the duties of a CNS II."
SAC ¶¶ 18, 19.
To establish that she was qualified for the CNS II
position, Quarles must show that:
(1)
"she
could
perform
the
essential
functions of the job, i.e., functions
that
bear
more
than
a
marginal
relationship to the job at issue," or
(2)
some "reasonable accommodation by the
employer would enable [her] to perform
those functions."
Bell v. Shinseki, No. 13-1890, 2014 WL 4555250, at *1 (4th Cir.
Sept. 16, 2014) (quoting Tyndall v. Nat'l Educ. Centers, Inc. of
California, 31 F.3d 209, 213 (4th Cir. 1994) (alteration in
original)).
Quarles does not describe the essential functions of a CNS
II, the sedentary position she held from 2005 through May 2010,
or the position to which she was assigned in May 2010 that
required "mov[ing] and travel[ing] constantly."
SAC ¶ 8.
Nor
does she identify whether she retained the same job
classification as a CNS II after the May 2010 reassignment.
Although Quarles contends that she requested an accommodation
from MDHR, the SAC does not state when Quarles made the request,
what the request entailed, or what MDHR offered in response.11
Moreover, the SAC presents inconsistent allegations as to
11
Other than to note that MDHR's offer was "unreasonable."
SAC ¶ 29.
15
whether Quarles required an accommodation.
In one place, the
SAC states that "[w]ith a minor accommodation, Ms. Quarles could
perform all the essential functions of a Computer Network
Specialist."
Id. ¶ 34.
In another, however, the SAC seems to
state that at some unspecified time "Quarles sent management a
medical note indicating that Ms. Quarles could work as a CNS II
operative without restriction."
Id. ¶ 19.
The Court finds it highly doubtful that the SAC presents
adequate factual allegations to present a plausible claim that
Quarles was a "qualified individual with a disability."
However, by virtue of the failure of the SAC to present a
plausible claim that Quarles was disabled - as defined in the
ADA - the qualified individual issue is moot.
C.
Title VII Retaliation Claim – Count III
In Count III of the SAC, Quarles presents a claim of
"retaliation for filing an EEOC charge under Title VII of the
1964 Civil Rights Act."
SAC at 1.
Title VII prohibits an employer from discriminating against
an employee because the employee filed a charge of
discrimination based upon an unlawful employment practice.12
42
U.S.C. § 2000e-3(a).
12
The ADA contains a similar prohibition. See 42 U.S.C. §
12203(a) ("No person shall discriminate against any individual
because such individual has opposed any act or practice made
16
To establish a prima facie case that MDHR retaliated
against her in violation of Title VII, Quarles must show that:
(1)
she engaged in protected activity,
(2)
an adverse employment action was taken
against her, and
(3)
there was a causal link between the
protected activity and the adverse
employment action.
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 258
(4th Cir. 1998).13
The retaliation claim in the SAC is fatally flawed because
the adverse employment action upon which the claim is based
occurred before, not after, the alleged protected activity that
was the subject of retaliation.
causation.
There cannot be retroactive
Hence, the retaliation claim lacks a causal link.
In the SAC, Quarles alleges that she "engaged in a
protected activity in that she filed an EEOC charge [on December
27, 2010] and the state took direct retaliatory action."
57, 64.
SAC ¶¶
Filing a Charge of Discrimination with the EEOC is a
protected activity.
See Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998).
unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.").
13
See Rhoads v. F.D.I.C., 257 F.3d 373, 391-92 (4th Cir.
2001) (applying the same legal standard to retaliation claims
brought under the ADA).
17
The SAC states that "[t]he adverse action or termination
came quickly after Ms. Quarles made her EEOC charge."
(emphasis added).
SAC ¶ 63
The SAC refers to Quarles's "termination" as
the "adverse employment action."
However, the relevant date
upon which the Title VII retaliation claim must focus is
December 6, 2010.
On this date, Fitzgerald informed Quarles in
a letter that Quarles had until January 3, 2011 to resign or her
position would be vacated. Id. ¶ 38.
January 3, 2011 – the date
when Quarles resigned pursuant to the December 6, 2010 letter is not the pertinent date of the adverse employment action.
Cf. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) ("[T]he operative
decision was made-and notice given-in advance of a designated
date on which employment terminated. . . . [T]he proper focus is
on the time of the discriminatory act, not the point at which
the consequences of the act become painful."); Hospodor v.
Burlington Indus., Inc., 205 F.3d 1333 (4th Cir. 2000) ("In a
case involving alleged unlawful termination, the time for filing
EEOC charges accrues when the employee receives notice of his
termination, not when the termination occurs.").
Based upon the facts alleged in the SAC, Quarles cannot
establish a causal link between the filing of the Charge of
Discrimination on December 27, 2010 and receiving the notice of
intended termination from Fitzgerald on December 6, 2010 because
the protected activity occurred 21 days after the allegedly
18
adverse employment action.
Thus, MDHR is entitled to dismissal
of Quarles's retaliation claim.
In her Response to the instant Motion, Quarles seeks to
present a claim based upon retaliation on the grounds that the
protected activity "was asking for a legitimate accommodation
for her disabling condition."
[Document 25] at 13.
This claim
will not be considered because it is not presented in the SAC.
Quarles cannot, in her Response to the instant Motion, file
a Third Amended Complaint to add new claims.
See Zachair, Ltd.
v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997) ("Zachair is
bound by the allegations contained in its complaint and cannot,
through the use of motion briefs, amend the complaint."); see
also Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir.
1994) ("[T]he sparse case law addressing the effect of factual
allegations in briefs or memoranda of law suggests that such
matters may never be considered when deciding a 12(b)(6) motion
. . . and most certainly may not be considered when the facts
they contain contradict those alleged in the complaint."
(citations omitted)); Great N. Ins. Co. v. Recall Total Info.
Mgmt., Inc., No. 8:13-CV-01829-AW, 2013 WL 6804745, at *3 (D.
Md. Dec. 19, 2013) ("Although Plaintiff argues that the
'allegations' gleaned from the news reports mentioned above
create a plausible inference of gross negligence, the Court
19
declines to consider these averments as Plaintiff made them in a
legal memorandum, not the Complaint.").
Accordingly, all claims in Count III are DISMISSED.
IV.
CONCLUSION
For the foregoing reasons:
1.
Defendant Maryland Department of Human Resources'
Motion to Dismiss Second Amended Complaint
[Document 23] is GRANTED.
2.
Judgment shall be issued by separate Order
SO ORDERED, on Thursday, December 4, 2014.
/s/__________
Marvin J. Garbis
United States District Judge
20
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