Krupczak v. DLA Piper LLP (US) et al
Filing
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MEMORANDUM. Signed by Judge William M Nickerson on 7/27/2016. Associated Cases: 1:16-cv-00023-WMN, 1:16-cv-00024-WMN(c/m 7/27/16 jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LISA A. KRUPCZAK
Plaintiff
v.
DLA PIPER LLP (US) et al.
Defendants
LISA A. KRUPCZAK
Plaintiff
v.
DLA PIPER LLP (US) et al.
Defendants
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Civil Action No. WMN-16-23
Civil Action No. WMN-16-24
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MEMORANDUM
Plaintiff Lisa A. Krupczak, acting pro se, filed two
identical Complaints against Defendants DLA Piper LLP (DLA
Piper), Unum Life Insurance Company of America (Unum), and Named
and Unnamed Individuals. 1
No. 2.
2016.
WMN-16-23, ECF No. 2; WMN-16-24 ECF
DLA Piper removed the cases to this Court on January 4,
WMN-16-23, ECF No. 1; WMN-16-24, ECF No. 1.
The three-
count Complaints assert 1) “Wrongful Termination in V[i]olation
of the ADA,” 2) “Abusive Discharge,” and 3) “Breach of Covenant
1
The first Complaint was filed in the Circuit Court of Maryland
for Baltimore City, Case No. 24-C-15-006074, on November 30,
2015. WMN-16-24, ECF No. 1. The second Complaint was filed in
the Circuit Court of Maryland for Baltimore County, Case No. 03C-15-013021, on December 1, 2015. WMN-16-23, ECF No. 1.
of Good Faith and Fair Dealings.”
24, ECF No. 2.
WMN-16-23, ECF No. 2; WMN-16-
Although Count II of the Complaint is titled
“Abusive Discharge,” the cause of action is for wrongful
termination.
See id. ¶ 36 (stating DLA Piper’s “actions
including the retaliation or termination for becoming disabled
and other conduct alleged above constitutes the tort of wrongful
termination in violation of the public policy of the State of
Maryland”).
The following motions are pending before the Court: Unum’s
Motions to Dismiss, (WMN-16-23, ECF No. 10; WMN-16-24, ECF No.
8), DLA Piper’s Motions to Dismiss, (WMN-16-23, ECF No. 13; WMN16-24, ECF No. 11), and Defendants’ Motions to Consolidate
Related Actions, (WMN-16-23, ECF No. 14; WMN-16-24, ECF No. 12).
Upon a review of the parties’ submissions and the applicable
case law, the Court determines that no hearing is necessary,
Local Rule 105.6, and that the pending motions will be granted.
Because Civil Action Numbers WMN-16-23 and WMN-16-24 will be
consolidated under Civil Action Number WMN-16-23, all further
docket citations are to Civil Action Number WMN-16-23 unless
otherwise noted.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October of 2012, Plaintiff began working for DLA Piper
as a Client Account Team Leader in Baltimore, Maryland.
During
her employment with DLA Piper, Plaintiff was a participant in an
2
employee welfare benefit plan (benefit plan) maintained by DLA
Piper and administered by Unum.
In January of 2014, Plaintiff
requested leave from work to undergo medical treatment.
On
February 10, 2014, DLA Piper approved Plaintiff’s request for
continuous leave until May 12, 2014, with full pay and medical
benefits under DLA Piper’s Short Term Disability (STD) program.
On May 12, 2014, DLA Piper notified Plaintiff that it was
eliminating her position.
On May 16, 2014, DLA Piper’s Director
of Human Resources, Melissa Armentrout, sent Plaintiff a letter
regarding her termination which was organized into two sections.
ECF No. 13-4.
The first section of the letter informed
Plaintiff that DLA Piper would pay her the full amount of her
salary through May 16, 2014, and that her termination would not
impact the status of the benefits she was receiving under the
STD program.
The first section also advised Plaintiff that her
medical, vision, and dental insurance would continue to be paid
until May 31, 2014, and that after that time, she would be
eligible for COBRA.
The second section of the letter, titled
“Terms of the Agreement,” offered Plaintiff a separation
package.
That separation package gave Plaintiff the option to
elect four weeks of severance pay as well as continued medical
coverage through June 30, 2014, among other things, in exchange
for an agreement to release all claims Plaintiff might have
against DLA Piper and its employees.
3
On May 20, 2014, Plaintiff
accepted the separation package by signing the separation
agreement.
On October, 28, 2014, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(EEOC), claiming that she was discharged in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181 et
seq.
On August 31, 2015, the EEOC issued a written notice
dismissing Plaintiff’s Charge of Discrimination.
Thereafter,
Plaintiff initiated the actions currently pending before the
Court.
The crux of Plaintiff’s claim is that, when she was
hired, she was told she could work at DLA Piper until
retirement, yet she “was terminated because of the disability,
and to evade the commitments and employment benefits promised to
her until retirement.”
ECF No. 2 ¶ 27(d).
Plaintiff asserts
that DLA Piper engaged in discrimination, colluded with Unum to
mask that discrimination, and manufactured the basis relied upon
for the termination of her employment and benefits.
Plaintiff
further alleges that DLA Piper has a policy to terminate
employees when claims for disability are made.
On January 8, 2016, Unum filed Motions to Dismiss,
asserting two grounds for dismissal; failure to state a claim
upon which relief can be granted and failure to exhaust
administrative remedies under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. §§ 1100 et seq.
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ECF No. 10.
On
January 11, 2016, DLA Piper filed separate Motions to Dismiss,
asserting that all of Plaintiff’s claims against it and its
employees are legally barred by a valid release, i.e. the
separation agreement, and for failure to state a claim upon
which relief can be granted.
ECF No. 13.
On January 11, 2016,
Defendants filed Motions to Consolidate Related Actions.
ECF
No. 14.
II. DISCUSSION
A. Motion to Consolidate
Defendants request that this Court enter an order
consolidating the above captioned actions pursuant to Federal
Rule of Civil Procedure 42(a)(2).
this motion.
Plaintiff has not opposed
Under Rule 42(a)(2), “[i]f actions before the
court involve a common question of law or fact, the court may:
... consolidate the actions.”
Plaintiff’s Complaint in Civil
Action Number WMN-16-23 is identical to her Complaint in Civil
Action Number WMN-16-24; the same exact facts, questions of law,
and parties are before the Court in both actions.
Where, as
here, related actions involve identical allegations and legal
claims, the interest of judicial economy dictates that the
actions be consolidated for all purposes.
See, e.g., Coyne &
Delany Co. v. Selman, 98 F.3d 1457, 1473 (4th Cir. 1996)
(finding substantial overlap between two lawsuits and requiring
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consolidation).
Therefore, the Court will grant Defendants’
motion to consolidate.
B. Motions to Dismiss
i. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure
authorizes the dismissal of a complaint for failure to state a
claim upon which relief can be granted; therefore, a Rule
12(b)(6) motion tests the legal sufficiency of a complaint.
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
In evaluating a motion to dismiss filed pursuant to Rule
12(b)(6), the court must accept as true all well-pled
allegations of the complaint and construe the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff.
472, 474 (4th Cir. 1997).
Ibarra v. United States, 120 F.3d
To survive dismissal, “a complaint
must contain sufficient factual matter . . . 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 has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Twombly, 550 U.S. at 556).
Iqbal, 556 U.S. at 678 (citing
“In considering a challenge to the
adequacy of a plaintiff's pleading, however, a court may
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properly consider documents ‘attached or incorporated into the
complaint,’ as well as documents attached to the defendant's
motion, ‘so long as they are integral to the complaint and
authentic.’”
Johnson v. Baltimore City Police Dep’t, Civil No.
ELH–12–2519, 2014 WL 1281602, at *13 (D. Md. Mar. 27, 2014)
(quoting Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009)).
When dealing with a pro se party, “the longstanding
practice is to construe pro se pleadings liberally.”
Slade v.
Hampton Roads Reg’l Jail, 407 F.3d 243, 252 (4th Cir. 2005).
Nonetheless, dismissal of a pro se complaint for failure to
state a claim is appropriate where it appears “beyond doubt that
the plaintiff can prove no set of facts in support of [her]
claim which would entitle [her] to relief.”
Russell v. Russel
Motor Cars Inc., 28 F. Supp. 3d 414, 420 (D. Md. 2014).
ii. Unum’s Motion to Dismiss
Unum asks this Court to dismiss the Complaint for failure
to state a claim upon which relief can be granted, arguing that
“[t]here is simply no specific substantive allegation against
Unum and there is no mention of Unum” in any of the causes of
action, “including the requests for relief thereunder.”
10-1 at 8.
ECF No.
Upon review, the Court agrees; the gravamen of
Plaintiff’s Complaint is her allegation that DLA Piper
discriminated against her due to her disability by terminating
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her employment contract with the objective of cutting off her
employment benefits.
Plaintiff’s ADA claim (Count I) and state
law claim for wrongful termination (Count II) concern DLA
Piper’s termination of Plaintiff’s employment contract.
Although Plaintiff’s Complaint alludes to collusion between Unum
and DLA Piper, it fails to specify what unlawful actions Unum
undertook, when they occurred, and how DLA Piper’s termination
of Plaintiff was influenced by Unum in its role as administrator
of the benefit plan.
With respect to Counts I and II, the Court
finds that Plaintiff has not stated a claim against Unum.
Maryland law does not recognize the cause of action
asserted in Count III, breach of the implied covenant of good
faith and fair dealing, as an independent cause of action.
Mount Vernon Properties, LLC v. Branch Banking & Tr. Co., 907
A.2d 373, 381 (Md. Ct. Spec. App. 2006).
A breach of that
implied covenant simply supports “another cause of action at
law, e.g., breach of contract.”
Id.
Count III concerns DLA
Piper’s termination of Plaintiff’s employment contract.
Thus,
construing Count III as a claim for breach of contract, under
Maryland law, that claim must allege with certainty and
definiteness “facts showing a contractual obligation owed by the
defendant to the plaintiff and a breach of that obligation by
the defendant.”
Cont’l Masonry Co., Inc. v. Verdel Constr. Co.,
Inc., 369 A.2d 566, 569 (Md. 1977).
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Plaintiff has not alleged
that Unum was a party to Plaintiff’s employment contract, thus,
the Court finds that Plaintiff has failed to state a claim
against Unum in Count III.
Unum’s second ground for dismissal concerns Plaintiff’s
failure to exhaust administrative remedies under ERISA. 2
Despite
the lack of a formal cause of action under ERISA and against
Unum, the Court, construing Plaintiff’s Complaint liberally,
finds that it alludes to a purported claim for disability
benefits pursuant to the benefit plan, which is unmistakably
governed by ERISA.
Although ERISA does not contain an explicit
exhaustion requirement, courts have generally required claimants
to exhaust the remedies provided by their benefit plans as a
prerequisite to filing an ERISA action.
See Gayle v. United
Parcel Serv., Inc., 401 F.3d 222, 226 (4th Cir. 2005)(“An ERISA
welfare benefit plan participant must both pursue and exhaust
plan remedies before gaining access to the federal courts.”).
In fact, ERISA governed employee benefit plans are required to
provide internal dispute resolution procedures for participants
whose claim for benefits has been denied.
2
29 U.S.C. § 1133.
As
The Court notes that while failure to exhaust administrative
remedies is an affirmative defense, courts can, and often do,
address that defense in ruling on a motion to dismiss under Rule
12(b)(6). See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (noting that “where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense
may be reached by a motion to dismiss filed under Rule
12(b)(6)”).
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stated by the United States Court of Appeals for the Fourth
Circuit, the exhaustion requirement “rests upon [ERISA’s] text
and structure as well as the strong federal interest encouraging
private resolution of ERISA disputes.”
Makar v. Health Care
Corp. of the Mid-Atlantic, 872 F.2d 80, 82 (4th Cir. 1989).
Unum’s motion asserts that Plaintiff is presently receiving
long term disability (LTD) benefits under the benefit plan, that
her claim for benefits has never been terminated or suspended
since its inception on February 10, 2015, and that she has never
filed an administrative appeal related to the termination of
benefits under the benefit plan.
In opposition, Plaintiff cites
to the Appeal Procedures section of the benefit plan, which
states “[u]nless there are special circumstances, the
administrative appeal process must be completed before you begin
any legal action regarding your claim.”
ECF No. 10-4 at 43.
Plaintiff states, without further explanation, that because her
claim “is special in nature” and “holds special circumstances,”
the internal dispute resolution process does not apply.
ECF No.
25-1 at 6.
The Court finds that the benefit plan’s Appeal Procedures
section applies only after there has been an adverse benefit
determination.
Unum has not made an adverse benefit
determination, and therefore, there cannot be an appeal of the
same.
A stated previously, there is no evidence that Plaintiff
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has ever initiated the administrative process outlined in her
benefit plan, much less exhausted it, nor a showing of futility
that might otherwise circumvent an exhaustion requirement;
therefore, the Court finds that Plaintiff’s ERISA claims must be
dismissed for failure to exhaust administrative remedies.
In conclusion, all claims against Unum stop short of the
line between possibility and plausibility of entitlement to
relief.
Although Plaintiff is acting pro se, the Court’s
“liberal construction does not absolve Plaintiff from pleading a
plausible claim.”
Wilson v. City of Gaithersburg, 121 F. Supp.
3d 478, 482 (D. Md. 2015).
As such, Unum’s Motion to Dismiss,
ECF No. 10, will be granted. 3
iii. DLA Piper’s Motion to Dismiss
DLA Piper’s Motion to Dismiss asserts that Plaintiff’s
claims against it and its employees 4 are legally barred by a
3
Plaintiff requests the opportunity to amend her Complaint to
“cure any indicated deficiencies.” ECF No. 25 at 2. Amendment
as to Unum would be futile; however, because Unum was not
responsible for Plaintiff’s termination, rather, it was
responsible for administering the benefit plan. To that extent,
any claim against Unum, other than an ERISA claim regarding
benefits under the benefit plan, would be preempted by ERISA.
See, e.g., Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d
230, 238 (4th Cir. 2008) (stating that ERISA preemption is broad
and that ERISA supersedes “any and all State laws” that relate
to an employee benefit plan).
4
In the section of the Complaint titled “Parties,” DLA Piper
employees Sandy Dolle, Irene Jakubowski, and Melissa Armentrout
are mentioned by name. Federal Rule of Civil Procedure 10(a)
states “[t]he title of the complaint must name all the parties.”
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valid release contained in Plaintiff’s separation agreement.
While extrinsic evidence is generally not considered at the
12(b)(6) stage, “when a defendant attaches a document to its
motion to dismiss, a court may consider it in determining
whether to dismiss the complaint if it was integral to and
explicitly relied on in the complaint and if the plaintiffs do
not challenge its authenticity.”
Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)
(internal citations omitted).
The separation agreement is
Exhibit C of DLA Piper’s Motion to Dismiss.
ECF No. 13-4.
The
separation agreement is integral to the Complaint, explicitly
relied upon therein, see ECF No. 2 ¶ 25, and its authenticity is
not disputed.
Therefore, the Court will consider the separation
agreement in evaluating DLA Piper’s motion.
The separation agreement provides, in pertinent part:
In exchange for the Separation Payments and other
consideration being provided to you, you hereby
release the Firm of and from any and all known or
unknown claims, causes of action, liability, and/or
damages arising out of or relating to your employment
with the Firm and/or the termination of that
employment, to the greatest extent permitted under
applicable law. By signing this Agreement, you are
waiving any such claims that you have or may have
against the Firm, its partners, directors, officers,
Due to Plaintiff’s failure to follow this rule in regards to the
three identified DLA Piper employees, and more significantly,
Plaintiff’s failure to state any cause of action against them in
the Complaint, the Court finds that the three named individuals
are not parties to this case.
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shareholders, employees, attorneys, insurers, legal
successors and assigns, and all other related or
affiliated persons, firms or entities. This includes
all claims, rights, and/or obligations arising under
any federal, state or local laws pertaining to
employment, including but not limited to all
employment discrimination laws, such as Title VII of
the Civil Rights Act of 1964, the Americans with
Disabilities Act ... the Employee Retirement Income
Security Act of 1866, ... and any and all other
federal, state and local statutes, cases, authorities
or laws ... including but not limited to claims of
wrongful termination ... breach of contract, fraud,
negligence, and any other contract or tort claims.
THIS IS A GENERAL RELEASE OF CLAIMS.
ECF No. 13-4 ¶ 8 (emphasis added).
Plaintiff does not dispute
that the separation agreement, by its terms, would preclude her
from maintaining a suit on these claims.
Instead, Plaintiff
asserts that the separation agreement is not valid 1) because it
“was signed under coercion by [DLA Piper’s] Director of Human
Resources, Melissa Armentrout” and 2) because the agreement “was
signed while she was undergoing a rigorous medical treatment
including medication which affected her mental and decision
making abilities.”
ECF No. 25 at 1.
“Courts have, in the employment law context, commonly
upheld releases given in exchange for additional benefits.”
Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 11
(1st Cir. 1997); see Reighard v. Limbach Co., Inc., 158 F. Supp.
2d. 730, 733 n.8 (E.D. Va. 2001) (collecting cases indicating
that an employee can waive existing claims under ERISA); Equal
Emp’t Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279,
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299-300 (2002) (indicating that an employee can waive their
ability to bring suit on an ADA claim).
In the Fourth Circuit,
courts apply ordinary contract principles to determine the
validity of a release, and therefore, “turn to the appropriate
state’s law for guidance.”
O’Shea v. Commercial Credit Corp.,
930 F.2d 358, 362 (4th Cir. 1991).
The separation agreement
provides that it “will be interpreted and enforced in accordance
with Maryland law.”
ECF No. 13-4 ¶ 13.
A claim that a release is voidable on the ground of duress
must be supported with allegations of “(1) [a] wrongful act or
threat by the opposite party to the transaction or by a third
party of which the opposite party is aware and takes advantage,
and (2) a state of mind in which the complaining party was
overwhelmed by fear and precluded from using free will or
judgment.”
1978).
Food Fair Stores, Inc. v. Joy, 389 A.2d 874 (Md.
Plaintiff asserts that she signed the agreement “under
coercion and with the threat of not only losing her medical
insurance, but her financial income as well,” yet, the
separation agreement explicitly states:
[t]his change in employment status does not impact the
status of the benefits you are currently receiving
under the Firm’s short-term disability (STD) plan ...
STD benefits are paid at a rate equal to 100% of your
base biweekly earnings and continue for up to 365 days
from your disability start date of February 10, 2014,
contingent upon the continued approval of Unum.
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ECF No. 13-4 at 1.
Thus, when Plaintiff signed the separation
agreement, she was receiving STD benefits in the amount of 100%
of her salary and would continue to receive those benefits
regardless of whether she accepted the separation package.
Plaintiff’s claim that she was faced with the threat of losing
everything is not only unsupported by the record, but it is
insufficient as a matter of law.
“Personal economic burdens
resulting from the loss of a job do not, generally speaking,
constitute ‘duress’ for the purpose of invalidating a
termination release.”
Lewis v. Extended Stay America, Inc., 454
F. Supp. 2d 453, 458 (M.D.N.C. 2006) (citing Melanson v.
Browning-Ferris Indus., Inc., 281 F.3d 272, 277 (1st Cir.
2002)).
To further support her claim of duress, Plaintiff asserts
that Ms. Armentrout coerced her into signing the separation
agreement.
Her support for this assertion comes from an email
from Ms. Armentrout, which states:
I wanted to make sure you didn’t send me the signed
agreement, because I haven’t received anything. In
order to receive a paycheck on May 30, I will need the
signed agreement no later than Tuesday, May 27. You
obviously have longer than that to consider the
agreement, but you wouldn’t receive a paycheck until
we have the executed document.
ECF No. 25-3.
The Court finds that this email is merely
informational, without any coercive tone or threat which might
preclude Plaintiff from using free will or sound judgment in
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making her decision.
Furthermore, Plaintiff was given 21 days
to sign the agreement and an additional 7 days to revoke her
acceptance; ample time to weigh her options and consult with
counsel, if she wished to do so.
Finally, Plaintiff’s assertions regarding her capacity to
give valid consent are contradictory.
Plaintiff argues that the
separation agreement should not be enforced because it was
“signed while she was undergoing rigorous medical treatment
including medication which affected her mental and decision
making abilities.”
ECF No. 25 at 1.
This assertion, that she
could not “focus on, comprehend or understand the lengthy
document [] due to the side-effects suffered,” is contradicted
by her following assertion that she signed the agreement
“without reading the document.”
ECF No. 25-1 at 3-4.
Further,
while undergoing the same course of treatment, she pursued a
Charge of Discrimination with the EEOC, drafted and filed the
Complaints in this matter, and drafted the opposition to the
motions to dismiss.
As such, Plaintiff certainly had the
capacity to understand her affirmation that “I HAVE READ THE
FOREGOING OFFER AND I FULLY UNDERSTAND ITS TERMS. I AM SIGNING
THIS AGREEMENT FREELY AND VOLUNTARILY, HAVING BEEN GIVEN A FULL
AND FAIR OPPORTUNITY TO CONSIDER IT AND CONSULT WITH MY OWN
LEGAL COUNSEL.”
ECF No. 13-4 at 7.
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In conclusion, Plaintiff’s assertion that her medical
condition and medications affected her decision making
capability is not enough.
“Mere evidence of diagnostic labels
without content tying them to capacity to give valid consent is
inadequate to create an issue as to the consequences of the
disorders on an individual’s capacity to give valid consent.”
Rivera-Flores, 112 F.3d at 13.
In the alternative, the Court notes that if the release
executed by Plaintiff was invalid, i.e. voidable, Plaintiff’s
subsequent acceptance of the separation package demonstrated her
intent to ratify the agreement.
“It is a well-established
proposition that the retention of the benefits of a voidable
contract may constitute ratification.”
O’Shea, 930 F.2d at 362;
see, e.g., In re Boston Shipyard Corp., 886 F.2d 451, 455 (1st
Cir. 1989) (“a contract or release, the execution of which is
induced by duress, is voidable, not void, and the person
claiming duress must act promptly to repudiate the contract or
release or he will be deemed to have waived his right to do
so”); Anselmo v. Manufacturers Life Ins. Co., 771 F.2d 417, 420
(8th Cir. 1985)(a plaintiff who signed a release under threat of
losing severance pay sued to rescind, claiming duress, and the
court held for defendant on the ground that the employee
accepted the benefits and thereby ratified the contract).
By
retaining the benefits of the separation package and filing suit
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a year and a half later, Plaintiff seeks to both benefit from
the agreement and gain relief from this Court, an outcome which
the doctrine of ratification was designed to prohibit.
By
signing the agreement, failing to revoke it, and accepting
payment under it, Plaintiff released any claims arising from her
employment with, or termination of employment from, DLA Piper.
The Court finds that Plaintiff’s claims against DLA Piper are
barred by a valid release, or in the alternative, by
ratification. 5
III. CONCLUSION
For the above-stated reasons, the Court will grant all
pending motions in Civil Action Numbers WMN-16-23 and WMN-16-24.
A separate order will issue.
____________/s/___________________
William M. Nickerson
Senior United States District Judge
DATED: July 27, 2016
5
Plaintiff’s request to amend her Complaint as to DLA Piper is
denied, as the flaws in the Complaint are not just technical
pleading failures, but rather, stem from Plaintiff’s fundamental
inability to state a viable claim due to the separation
agreement.
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