Lora et al v. Ledo Pizza System, Inc. et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/27/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LENIN LORA, et al.
Civil Action No. DKC 16-4002
LEDO PIZZA SYSTEM, INC.
employment case are: (1) a motion to dismiss filed by Defendant
Ledo Pizza Systems, Inc. (ECF No. 5); (2) a motion to dismiss
filed by Defendants PV Shah, Trupti Prakash Shah, and Annapurna,
Inc. (collectively, the “Owings Mills Defendants”) (ECF No. 7);
and (3) a motion for leave to amend filed by Plaintiffs Lenin
Lora and Jazmyn Miller (“Plaintiffs”) (ECF No. 21).
have been briefed, and the court now rules, no hearing being
Local Rule 105.6.
For the following reasons,
the motion for leave to amend will be granted, and the motions
to dismiss will be granted in part and denied in part.
corporation that franchises Ledo’s Pizza restaurants.
Unless otherwise noted, the facts outlined here are set
forth in the amended complaint and construed in the light most
favorable to Plaintiffs.
21-2 ¶ 12).
Defendants PV Shah and Trupti Prakash Shah (“the
Shahs”) own and operate Annapurna Incorporated (“Annapurna”).
(Id. ¶ 16).
Annapurna operates a Ledo’s Pizza franchise in
Owings Mills, Maryland (the “Owings Mills Store”).
restaurant in Colesville, Maryland.
(Id. ¶ 13).
(Id. ¶ 18).
After Mr. Lora
worked at the Colesville location for years and was promoted to
the role of the general manager, he eventually accepted a job
with another employer in early 2016.
(Id. ¶¶ 18-19).
thereafter, at the recommendation of Ledo President James Beall,
Annapurna hired Mr. Lora as the general manager of the Owings
Mills Store on March 14, 2016.
(Id. ¶¶ 21-22).
corporate Ledo employee, to ask if he could hire Ms. Miller as a
bartender at the Owings Mills Store.
(Id. ¶ 26).
Mr. Lora and
Ms. Miller were in a romantic relationship, which he disclosed
to Defendants before hiring her.
(Id. ¶¶ 26-28).
Even though Mr. Richards was a Ledo employee, he worked
Richards directed Mr. Lora as to which items to stock in the
consultation, and operational support.
also required that Mr. Lora provide him with daily and weekly
Plaintiffs allege that Mr. Richards also hired at least
one server at the Owings Mills Store, and that he set the work
schedules for Mr. Lora and his assistant.
(Id. ¶ 24).
In March 2016, Mr. Lora hired 64-year-old Jacki Gray as a
bartender for the Owings Mills Store.
(Id. ¶ 29).
told Mr. Lora that Ms. Gray was “too old” and “grandma like,”
suggested that she would not be able to make and serve drinks at
a fast pace, and ordered Mr. Lora to fire her.
(Id. ¶¶ 31-32).
When Mr. Lora told Mr. Richards that he could not fire her
because of her age, Mr. Richards told Mr. Lora that he would
“regret it” if he did not fire her.
(Id. ¶ 34).
Around the same time, Mr. Lora began processing payroll for
the Owings Mills Store and noticed several issues.
discovered that some employees were being paid less than minimum
(Id. ¶ 35).
Mr. Lora informed Trupti Prakash Shah that
correct the wages in Annapurna’s payroll system but never made
amounts for overtime work.
(Id. ¶¶ 45-46).
Third, Mr. Lora
discovered that one employee at the Owings Mills Store was an
undocumented worker who was being paid outside of Annapurna’s
(Id. ¶¶ 41-43).
When Mr. Lora raised concerns
about this practice with Ms. Shah and Mr. Richards, Mr. Richards
told him to “do the best you can,” and Ms. Shah continued to pay
the undocumented worker.
(Id. ¶ 44).
At the beginning of June, the Shahs eliminated Mr. Lora’s
payroll responsibilities, began processing payroll exclusively
Annapurna’s wage violations, employees in the Owings Mills Store
confronted the Shahs after receiving their reduced paychecks on
(Id. ¶ 50).
On June 16, Mr. Lora complained once
again about the undocumented worker, this time to PV Shah.
On June 17, the day after making this complaint, Mr.
Shah and Mr. Richards told Mr. Lora he was being fired because
of the poor performance of the Owings Mills Store.
(Id. ¶¶ 52-
When Ms. Miller called two days later to ask for her shift
schedule for the week, Ms. Shah told Ms. Miller that “Corporate”
had told her not to put Mr. Lora “or his girlfriend” on the
schedule, effectively terminating Ms. Miller’s employment at the
underpaid in their final paychecks.
(Id. ¶¶ 57-59).
parties, including Mr. Beall, a food safety inspector, and the
other employees at the Owings Mills Store, that Mr. Lora was a
“bad manager,” that he “did not care about the store,” and that
he had been stealing from the restaurant.
(Id. ¶ 61).
Plaintiffs each filed charges of discrimination with the
Plaintiffs filed the instant suit.
(ECF No. 1).
original complaint, they alleged that: Defendants fired each of
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
201, et seq. (Counts I and II); Defendants fired each of them in
retaliation for Mr. Lora refusing to fire Ms. Gray because of
her age, in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. (Counts III and
IV); Defendants defamed Mr. Lora after he was fired (Count V);
unfair wage practices, in violation of public policy and thus
constituting an abusive discharge (Count VI); and the Owings
Mills Defendants intentionally underpaid each of them on their
last paychecks constituting both a failure to pay wages and
untimely payment of wages under the Maryland Wage Payment and
Collection Law, Md. Code Ann., Labor & Empl. § 3-501 et seq.,
(Counts VII, VIII, IX, and X).
(ECF No. 1 ¶¶ 61-121).
Ledo filed a motion to dismiss all of the claims against it
on January 12, 2017.
(ECF No. 5).
That same day, the Owings
Mills Defendants filed a partial motion to dismiss as to the
Shahs for Counts III and IV, and as to all three Owings Mills
Defendants for Counts V and VI.
(ECF No. 7).
On February 9,
Plaintiffs filed responses in opposition to each motion and a
motion to amend their complaint.
(ECF Nos. 19-21).
Mills Defendants consented to Plaintiffs’ motion to amend, but
Ledo did not.
(ECF No. 21).
On March 2, Ledo responded in
opposition the Plaintiffs’ motion to amend and also filed a
reply to its motion to dismiss.
(ECF Nos. 25; 26).
Plaintiffs’ Motion to Amend
Standard of Review
A party may amend its pleading once as a matter of course
within twenty-one days after serving it or within twenty-one
whichever is earlier.
When the right to
amend as a matter of course expires, “a party may amend its
pleading only with the opposing party’s written consent or the
Whether to grant leave
to amend is a matter left to the discretion of the district
court, see Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d
754, 769 (4th Cir. 2011), though courts should “freely give leave
when justice so requires,” Fed.R.Civ.P. 15(a)(2).
leave to amend is appropriate “only when the amendment would be
prejudicial to the opposing party, there has been bad faith on
the part of the moving party, or the amendment would be futile.”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)
(emphasis in original) (quoting Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986)).
The Owings Mills Defendants have consented to Plaintiffs’
motion to amend.
(ECF No. 21, at 1).
Ledo filed an opposition
would be both futile and prejudicial.
(ECF No. 24, at 3).
Leave to amend may be denied as futile “if the proposed
federal rules,” including federal pleading standards.
(quoting Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir. 2008)); Oroweat Foods Co., 785 F.2d at 510 (“Leave to
amend, however, should only be denied on the ground of futility
when the proposed amendment is clearly insufficient or frivolous
on its face.” (citations omitted)).
Denial of leave to amend on
futility grounds is appropriate if the court, taking as true the
allegations of the proposed amended pleading, would be compelled
to dismiss the action.
See Kellogg Brown & Root, 525 F.3d at
376 (affirming the district court’s denial of leave to amend
because the “proposed amended complaint does not properly state
a claim under Rule 12(b)(6)”).
As explained below, the factual
allegations in the proposed amended pleading are sufficient to
survive a motion to dismiss on several counts.
Plaintiffs’ amendment would not be futile.
“Whether an amendment would be prejudicial is a factual
amendment, the purpose of the amendment, and the time when the
amendment was filed.”
Equal Rights Ctr. v. Archstone Smith Tr.,
603 F.Supp.2d 814, 818 (D.Md. 2009) (citing Laber v. Harvey, 438
F.3d 404, 427 (4th Cir. 2006) (en banc); Oroweat Foods Co., 785
F.2d at 509).
The United States Court of Appeals for the Fourth
Circuit has explained that:
A common example of a prejudicial
amendment is one that “raises a new legal
theory that would require the gathering and
analysis of facts not already considered by
the [opposing party, and] is offered shortly
before or during trial.”
Foman v. Davis,
371 U.S. 178, 182 (1962).
An amendment is
not prejudicial, by contrast, if it merely
adds an additional theory of recovery to the
facts already pled and is offered before any
discovery has occurred.
Laber, 438 F.3d at 427 (alteration in original).
Ledo contends that “permitting the amendment would unduly
prejudice Ledo Pizza System by causing it to defend a complaint
that would become a moving target through substantial changes to
the causes of action and allegations asserted.”
(ECF No. 24, at
To be sure, Plaintiffs’ modifications are designed to cure
defects identified in the motions to dismiss and therefore have
created somewhat of a moving target, but such changes are common
to amended complaints.
See Hess v. Gray, 85 F.R.D. 15, 20
complaint results in some prejudice to the defendant, either in
the form of additional counts or new discovery resulting in
The test in each case is whether undue prejudice will
Here, Plaintiffs provided their amended complaint
dismiss, allowing Ledo to address these new allegations in its
Indeed, Ledo has done so.
Moreover, this case is in its
Ledo has not yet filed its answer, nor has any
discovery been scheduled.
Accordingly, Ledo cannot show that
amendment would cause undue prejudice, and Plaintiffs’ motion to
amend will be granted.2
remain in the new pleading, the court simply may consider the
motion [to dismiss] as being addressed to the amended pleading.”
Ledo also asks the court to require Plaintiffs to
compensate it for the additional costs incurred by Ledo due to
Plaintiffs’ failure adequately to plead their case in their
Ledo cites to only one case in which a
court imposed such a condition on amendment, and the court in
that case emphasized that it was requiring such a payment
because of the “special circumstances” of the case. Firchau v.
Diamond Nat’l Corp., 345 F.2d 269, 275 (9th Cir. 1965).
circumstances here are far from special; the amendments that
Plaintiffs have made here are of the nature quite commonly
accepted by courts, and the timing of Plaintiffs’ filing did not
delay the advancement of the case in any way.
court declines to impose any cost conditions on Plaintiffs for
6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1476 (2d ed. 1990), cited in Ford v.
Chiaramonte, No. DKC-10-0137, 2010 WL 2696699, at *3 n.2 (D.Md.
July 6, 2010); see also Dolgaleva v. Va. Beach City Public.
Sch., 364 F.App’x 820, 825 (4th Cir. 2010) (accepting an appeal
based on a motion to dismiss that preceded an amended complaint
motion to dismiss).
As discussed below, Plaintiffs’ amended
complaint does not cure all of the defects raised by Defendants
in their motions to dismiss.
Defendants had an opportunity
further to argue such issues in their replies, and, in fact,
Ledo did so.
Therefore, the merits of the motions will be
Plaintiffs also argue that the Owings Mills Defendants’
motion to dismiss was filed twenty-two days after they were
served, and that the motion should therefore be denied as
untimely. (ECF No. 20, at 8). The Owings Mills Defendants were
served with the original complaint on December 21, 2016, and
filed both an answer and their motion to dismiss on January 12,
2017, one day beyond the twenty-one day limit according to
Fed.R.Civ.P. 12(a) for filing a responsive pleading or motion
under Fed.R.Civ.P. 12(b). Plaintiffs did not file for an entry
of default during the one-day delay, and, because Ledo was
served one day later than the Owings Mills Defendants, the
failure to meet the twenty-one day deadline did not cause any
delay in the case.
The Fourth Circuit has stated a strong
preference for cases to be decided on their merits.
States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993).
Under such circumstances, denial for untimeliness is not
See Tweh v. Green, No. GLR-12-2360, 2013 WL
6259863, at *2 (D.Md. Dec. 2, 2013) (holding that a delay of
III. Defendants’ Motions to Dismiss
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
That showing must consist of more than “a
formulaic recitation of the elements of a cause of action” or
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
complaint must be considered as true, Albright v. Oliver, 510
construed in the light most favorable to the plaintiff.
eight months was insufficient to warrant an entry of default
where defendants cured by filing a motion to dismiss before
plaintiff moved for default, and considering the merits of
defendants’ untimely motion to dismiss); United Advert. Agency,
Inc. v. Robb, 391 F.Supp. 626, 631 (M.D.N.C. 1975) (“This is a
technical violation of Federal Rule 12(a) since the response was
two days late, but this Court has never refused to consider a
substantial issue such as was raised by the motion because of a
one or two day delinquency in complying with a strictly
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
unsupported legal allegations need not be accepted.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see
also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
“[W]here the well-pleaded facts 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
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
experience and common sense.”
Plaintiffs’ FLSA Claims
Counts I and II for violations of the FLSA.
(ECF No. 5, at 8-
Defendants’ attempts to pay employees at the Owings Mills Store
less than minimum wage and less than they were required to pay
(ECF No. 21-2 ¶¶ 35-40, 45-47).
They allege that
Defendants fired Ms. Miller because of her relationship with Mr.
(Id. ¶ 56).
Ledo contends that it does not qualify as
Plaintiffs’ employer for FLSA purposes.
not argue that they worked directly for Ledo, but rather that
Owings Mills Store.
(ECF No. 19, at 6).
The FLSA defines an employee as “any individual employed by
an employer,” 29 U.S.C. § 203(e)(1), and an employer as “any
employer in relation to an employee,” 29 U.S.C. § 203(d).
Supreme Court has noted the “striking breadth” of the FLSA's
definitions and stated that an entity may constitute an employer
for FLSA purposes even if it is not an employer under other
Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
relationship[s] for joint employment have routinely concluded
that a franchisor’s expansive control over a franchisee does not
create a joint employment relationship” on its own.
Comcast Corp., 740 F.Supp.2d 683, 690 n.6 (D.Md. 2010) (citing
Singh v. 7–Eleven, Inc., No. C-05-04534 RMW, 2007 WL 715488, at
*7 (N.D.Cal. Mar. 8, 2007) (“A franchisor must be permitted to
retain such control as is necessary to protect and maintain its
creating an agency relationship with its franchisees.”)).
see Shupe v. DBJ Enters. LLC, NO. 1:14-CV-308, 2015 WL 790451,
at *4 & n.2 (M.D.N.C. Feb. 25, 2015) (noting that facts might
franchisor’s motion to dismiss because the plaintiff had alleged
‘Guiding Principles’ and ‘Code of Conduct’ that they required
all franchisees and franchisee employees to follow”).
plaintiff that demonstrates an employment relationship.
In Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 142
(4th Cir. 2017), the Fourth Circuit reiterated that courts must
consider “the circumstances of the whole activity” and ask the
“fundamental threshold question” of “whether a purported joint
conditions of a worker’s employment.”
The court identified six
factors that should be considered by courts undertaking this
(1) Whether, formally or as a matter of
jointly determine, share, or allocate the
power to direct, control, or supervise the
worker, whether by direct or indirect means;
(2) Whether, formally or as a matter of
jointly determine, share, or allocate the
power to—directly or indirectly—hire or fire
the worker or modify the terms or conditions
of the worker’s employment;
duration of the relationship between
putative joint employers;
(4) Whether, through shared management
or a direct or indirect ownership interest,
one putative joint employer controls, is
controlled by, or is under common control
with the other putative joint employer;
(5) Whether the work is performed on a
premises owned or controlled by one or more
independently or in connection with one
(6) Whether, formally or as a matter of
carried out by an employer, such as handling
providing the facilities, equipment, tools,
or materials necessary to complete the work.
Id. at 141-42.
Here, Plaintiffs allege that there were significant ties
between Annapurna and Ledo.
Annapurna hired Mr. Lora at the
recommendation of Ledo President Mr. Beall.
(ECF No. 21-2 ¶
Plaintiffs allege that Mr. Richards, a Ledo employee,
“controlled and directed” Mr. Lora’s work, required Mr. Lora to
provide him with daily and weekly reports, told him which items
to stock in the bar, set schedules for employees at the Owings
Mills Store, and hired one of the store’s bartenders.
Mr. Lora asked both the Shahs and Mr. Richards whether
he could hire Ms. Miller.
(Id. ¶ 26).
The amended complaint
alleges that both Mr. Shah and Mr. Richards told Mr. Lora that
he was being fired (id. ¶ 53), and that Trupti Shah told Ms.
Miller that “‘Corporate’ told her not to put [Mr. Lora or Ms.
Miller] on the schedule indicating that [Ms.] Miller was being
fired,” (id. ¶ 56).
Plaintiffs also allege that Mr. Richards
told Mr. Lora to fire Ms. Gray, and that Mr. Lora would “regret
it” if he did not fire her.
(Id. ¶¶ 32-34).
On one hand, this
threat indicates that Mr. Richards was not in a position to fire
Ms. Gray himself; on the other hand, it indicates that he might
have been able to fire Mr. Lora.
allegations indicate that Mr. Richards specifically, and Ledo
generally, had at least some power to control and supervise
workers and to hire, fire, or modify conditions of employment at
the Owings Mills Store.
The franchisor-franchisee affiliation
Accordingly, at least the first four factors could
possibly weigh in Plaintiffs’ favor.
Ledo argues in its reply that the amended complaint fails
to include any allegations specific to Ms. Miller’s employment
indicating that Ledo was her joint employer.
(ECF No. 26, at 3-
The amended complaint includes allegations that Ledo was
included in the decisions both to hire and to fire her.
No. 21-2 ¶¶ 26, 56).
These allegations, along with Plaintiffs’
allegations related Mr. Richards’s role and relationship with
the Owings Mills Store in general, are sufficient at this stage
of the litigation.
Ledo’s motion to dismiss will therefore be
denied as to Counts I and II.
Plaintiffs’ ADEA Claims
Ledo next moves to dismiss the claims against it in Counts
III and IV under the ADEA.
U.S.C. § 623(a).
(ECF No. 5, at 12).4
It also prohibits an employer from retaliating
against an employee because he opposes the employer’s policy or
practice that violates the ADEA.
Id. § 623(d).
“To establish a
prima facie case of retaliation [under the ADEA], a plaintiff
must demonstrate that: (1) he engaged in protected activity; (2)
In the Owings Mills Defendants’ motion to dismiss, they
argued that the Shahs could not be held individually liable
under the ADEA. (ECF No. 7-1, at 3). In the amended complaint,
Plaintiffs limited their claims in Counts III and IV to
Defendants Ledo and Annapurna. Therefore, Defendants’ arguments
as to these two counts are no longer before the court.
an adverse employment action was taken against him; and (3)
there was a causal link between the protected activity and the
Laber, 438 F.3d at 432.
Ledo argues that it
does not qualify as Plaintiffs’ joint employer for ADEA purposes
and that Plaintiffs have not adequately pleaded a causal link
(ECF No. 5, at 12-15).
As noted above, the definition of an employer under the
FLSA is more expansive than it is under other federal statutes.
Darden, 503 U.S. at 326; Salinas, 848 F.3d at 143 (“‘FLSA cases
. . . are not particularly transferrable to Title VII cases’
because the FLSA defines ‘employee’ more broadly than Title VII
and a number of other federal labor statutes.” (quoting Butler
v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414 (4th Cir.
Under the ADEA, an employer is any “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.”
29 U.S.C. § 630(b).
The Fourth Circuit has therefore applied a different test to
determine whether two entities qualify as joint employers under
See Butler, 793 F.3d at 414.5
Specifically, the court
Butler was an employment discrimination case under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, et seq.
793 F.3d at 406.
Title VII requires only
fifteen employees to be an employer, but, otherwise, “the
in Butler adopted a test that required courts to consider nine
individual, including employee discipline;
furnishes the equipment used and the place
(4) possession of and responsibility
over the individual’s employment records,
including payroll, insurance, and taxes;
(5) the length of time during which the
individual has worked for the putative
provides the individual with formal or
(7) whether the individual’s duties are
akin to a regular employee’s duties;
(8) whether the individual is assigned
solely to the putative employer; and
(9) whether the individual and putative
Butler, 793 F.3d at 414.
The court emphasized that the first
three factors are the most important and that no one factor is
Id. at 414-15.
operative language in ADEA is identical to the operative
language in Title VII, so the analysis utilized under either act
Haavistola v. Cmty. Fire Co. of Rising
Sun, Inc., 6 F.3d 211, 220 (4th Cir. 1993) (citing Garrett v.
Phillips Mills, Inc., 721 F.2d 979, 981 & n.4 (4th Cir. 1983)).
factual allegations noted above, Plaintiffs have sufficiently
complaint suggest that Ledo, acting through Mr. Richards, may
have had control over hiring and firing decisions (the first
factor), day-to-day supervision (the second factor), and formal
dismiss stage, these allegations are adequate.
Ledo also argues that, even if it qualifies as Plaintiffs’
employer, Plaintiffs have failed to allege facts demonstrating a
(ECF No. 5, at 14).
Ledo relies on the theory
that “[w]hen there is no direct evidence of discrimination, a
causal connection ‘can be established indirectly by showing that
Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593
(2d Cir. 1988)).
As Plaintiffs point out, however, this is not a
case in which there is no direct evidence of discrimination.
Rather, Plaintiffs allege that Mr. Richards ordered Mr. Lora to
fire a bartender at the Owings Mills Store because of her age
and told Mr. Lora that he would “regret it” if he failed to fire
(ECF No. 21-2 ¶¶ 33-34).
Construing this language in the
could be considered a threat that he would retaliate against Mr.
constitutes direct evidence of discrimination, and Plaintiffs
need not rely on the timing of the protected activity and the
adverse action to draw an inference of discrimination.
Patrick v. Ferguson, No. 1:10-CV-00045, 2011 WL 403429, at *6
n.3 (S.D.Ohio Feb. 3, 2011) (threatening to fire plaintiff if he
retaliation); see also Rose v. N.Y.C. Bd. of Educ., 257 F.3d
discrimination where plaintiff’s supervisor had threatened to
occasions and later recommended to the school board that she be
Accordingly, Plaintiffs have sufficiently pleaded a
causal connection, and Ledo’s motion to dismiss will be denied
as to Counts III and IV.
Mr. Lora’s Defamation Claim
All Defendants move to dismiss Mr. Lora’s defamation claim
in Count V.
(ECF Nos. 5, at 15-19; 7-1, at 3-4).
move to dismiss under three distinct theories.
argues that Mr. Lora has failed to allege necessary details for
a defamation claim. (ECF No. 5, at 16).
Second, Ledo argues
that any defamatory statements made by the Shahs or Mr. Richards
cannot be imputed to it.
(Id. at 17-18).
Third, all Defendants
employers under Maryland law.
(ECF Nos. 5, at 18-19; 7, at 3-
Ledo’s first argument is that the amended complaint lacks
the necessary particularity.
To state a claim for defamation in
Maryland, a plaintiff must plead the following four elements:
“(1) that the defendant made a defamatory statement to a third
person, (2) that the statement was false, (3) that the defendant
was legally at fault in making the statement, and (4) that the
plaintiff thereby suffered harm.”
191, 198 (2007).
Offen v. Brenner, 402 Md.
Mr. Lora has alleged that the Shahs and Mr.
Richards told third parties, including Mr. Beall, a food safety
inspector, and the employees at the Owings Mills Store, that Mr.
store,” and that he had been stealing from the restaurant.
The court has supplemental jurisdiction over Plaintiffs’
state law claims in Counts V through X under 28 U.S.C. §
“Erie mandates that federal courts apply the
substantive laws of the states when exercising diversity or
Ground Zero Museum Workshop v.
Wilson, 813 F.Supp.2d 678, 696 (D.Md. 2011) (citing Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938)).
None of the parties
dispute that Maryland law applies to these claims.
statements caused him reputational and other damages.
Ledo argues, however, that a plaintiff in a defamation suit
must plead his claim with more specific details, including the
exact content of each defamatory statement, the date on which
each statement was made, and by whom and to whom each statement
(ECF No. 5, at 16 (citing S. Volkwagen, Inc. v.
Centrix Fin., LLC, 357 F.Supp.2d 837, 844 (D.Md. 2005))).
relies on Southern Volkswagen, where the court instructed the
plaintiff to provide this detailed information in an amended
See S. Volkswagen 357 F.Supp.2d at 844.
the court sought more information in an amended complaint, it
raised jurisdictional issues.
The court did not order this
detailed information to meet the general pleading standard, and
other courts have noted that Southern Volkswagen “is not fairly
read to establish a heightened pleading standard for defamation
claims or minimum pleading requirements in order to state a
claim for defamation.”
Doe v. Johns Hopkins Health Sys. Corp.,
No. TDC-16-1635, 2017 WL 1293568, at *8 (D.Md. Apr. 6, 2017).
Accordingly, Mr. Lora need not provide more detail to survive a
motion to dismiss.
made by Mr. Richards can be imputed to it.
Mr. Lora must rely
statements on to Ledo, which requires that Mr. Richards was
employment at the time he made any defamatory statements, and
that his claim therefore must be dismissed.
Contrary to Ledo’s
Moreover, the alleged defamatory statements – that Mr. Lora was
a “bad manager,” that “he did not care about the store,” and
that he was stealing from the restaurant – pertained to Mr.
Lora’s work at the Owings Mills Store and were made to all
business-related parties, namely store employees, Mr. Beall, and
a restaurant food inspector.
These allegations, construed in
Mr. Lora’s favor, suggest that Mr. Richards may have made the
defamatory statements “incident to the performance of the duties
entrusted to him by the [employer],” Sawyer v. Humphries, 322
Mr. Richards may well have been acting to further
the interests of Ledo, perhaps in an effort to protect Ledo’s
reputation, when he made the allegedly defamatory statements.
Therefore, Ledo’s motion fails on this ground.7
Ledo also seems to argue that Mr. Lora’s claim should be
Finally, all Defendants argue that Mr. Lora’s defamation
allegedly defamatory statements are made within the context of
the employer-employee relationship.
(ECF Nos. 5, at 18-19; 7,
at 3-4 (citing Gen. Motors Corp. v. Piskor, 277 Md. 165, 172
(Md.Ct.Spec.App. Apr. 6, 2016); Happy 40, Inc. v. Miller, 63
dismissed automatically because he has not specifically pleaded
respondeat superior liability.
Ledo relies on Colfield v.
Safeway Inc., No. WDQ-12-3544, 2013 WL 5308278, at *7 (D.Md.
Sept. 19, 2013), in which the court held that the plaintiff’s
defamation claim against an employer failed because he had not
pleaded respondeat superior. That court cited another case for
the proposition that “a plaintiff pursuing a theory of vicarious
liability must affirmatively plead such an action.”
Id. at *7
n.23 (citing G.E. Tignail & Co. Inc. v. Reliance Nat’l Ins. Co.,
102 F.Supp.2d 300, 307 (D.Md. 2002)). In G.E. Tignail, however,
the court was considering whether an insurance provision that
included a duty to defend required the defendant to pay for the
plaintiff’s defense in an underlying tort suit; the absence of
any mention of vicarious liability in the pleadings prevented
the plaintiff’s claim in the coverage suit, where the pleadings
of the underlying tort suit control.
The circumstances here are not so convoluted, and other
courts have found generally that “whether or not the defendant’s
alleged actions . . . were within the scope of his employment
should not [be] decided on a motion to dismiss.”
Md. at 261; Chinwuba v. Larsen, 142 Md.App. 327, 370 (2002).
Although “courts have placed a higher pleading burden on
claimants seeking to avoid the bar of governmental immunity” by
claiming that a government actor was acting outside the scope of
his employment, Chinwuba, 142 Md.App. at 370, no such burden
need be applied in the instant case between two private parties.
Indeed, in Colfield the court also emphasized that the plaintiff
had not alleged any facts that gave a reason that the action
should be imputed to his employer.
Accordingly, Mr. Lora’s
respondeat superior arguments must be considered in light of the
factual allegations in the amended complaint, rather than any
rigid affirmative pleading requirements.
employer makes a statement about a previous employee or when
discussing with other employees the circumstances giving rise to
the employee’s termination.”
Helfin, 2016 WL 1360805, at *3.
plaintiff can overcome the employer’s privilege if he can show
Montgomery Investigative Servs., Ltd. v. Horne, 173 Md.App. 193,
recklessly, and/or maliciously” are too conclusory to qualify as
pleading actual malice.
(ECF Nos. 5, at 19; 7, at 4).
allegation, “albeit spare, has been held by a court . . . to
Railey, No. DKC-08-2468, 2012 WL 1190972, at * 4 (D.Md. Apr. 9,
complaint are thus sufficiently pleaded to survive a motion to
None of Defendants’ arguments warrant dismissal of Mr.
Lora’s defamation claim, and their motions to dismiss will be
denied as to Count V.
Mr. Lora’s Abusive Discharge Claim
discharge claim in Count VI.
(ECF Nos. 5, at 19-21; 7-1, at 4-
A claim for abusive discharge exists under Maryland common
clear mandate of public policy.”
291 Md. 31, 47 (1981).
Adler v. Am. Standard Corp.,
However, “[e]ven where statutory and
regulatory provisions supply a source of a public policy in the
already provide an adequate and appropriate civil remedy for the
motion to amend, Mr. Lora asserts that he “identified the wrong
public policy on which the abusive discharge claim is premised”
and has “cure[d] this error” by asserting a new public policy.
(ECF No. 21-1, at 3).
The amended Count VI relies on 8 U.S.C. §
1324a, which makes it illegal “to hire, or to recruit or refer
for a fee, for employment [a known] unauthorized alien.”
held by the Maryland Court of Special Appeals, however, a claim
for abusive discharge cannot stand on § 1324a grounds because
the statute itself provides for civil remedies.
See Magee v.
Defendants’ motions will be granted as to Count VI.
For the foregoing reasons, the motion for leave to amend
filed by Plaintiffs will be granted, and the motions to dismiss
filed by Defendants will be granted in part and denied in part.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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