Proueng v. Nova Biomedical Corp

Filing 13

Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Plaintiff's Motion for Extension of Time to Amend Complaint (Docket No. 9) and Motion to Amend Complaint (Docket No. 10) are ALLOWED. 2. Defendant's Motion to Dismiss (Docket No. 6) is MOOT. 3. Defendant shall, by April 5, 2019, respond to or answer the amended complaint. 4. This case is REFERRED to the Magistrate Judge for all pretrial purposes." MEMORANDUM AND ORDER entered finding as moot 6 Motion to Dismiss for Failure to State a Claim; granting 9 Motion for Extension of Time to Amend ; granting 10 Motion to Amend. (Bono, Christine)

UNITED STATES

DISTRICT COURT

DISTRICT OF MASSACHUSETTS

SINA PROEUNG,
Plaintiff,
C.A.

V.

No.

18-11106-MLW

NOVA BIOMEDICAL CORP.,
Defendant.

MEMORANDUM AND ORDER

WOLF,

I.

March 14, 2019

D.J.

INTRODUCTION

Plaintiff

Sina

Proeung

alleges

defendant Nova Biomedical Corp.

that

her

former

employer,

("Nova"), violated the Family and

Medical Leave Act ("FMLA"), 29 U.S.C. §2601 et seq., by terminating
her without notifying her of her rights under the FMLA. Nova moves
to dismiss for failure to state a claim upon which relief can be

granted. It argues that Proeung released her FMLA claim under a
valid severance agreement.

Proeung now moves to amend her complaint pursuant to Federal
Rule of Civil Procedure 15(a)(2). She seeks to add facts regarding
whether her release was knowing and voluntary.
amendment

as

futile.

The

court

finds,

Nova opposes the

however,

that

Proeung's

proposed amended complaint would not be futile. Therefore, the
motion to amend is being allowed.

II.

LEGAL STANDARD

Federal

Rule

of Civil

obtain leave of court,

Procedure

15(a)

requires

a

party to

absent the opposing party's consent,

amend a pleading more than 21 days after serving it or,

to

if a

responsive pleading is required, more than 21 days after service
of a motion under Rule 12(b) . In this case, 50 days elapsed between

Nova's

Motion

to

Dismiss

and

Proeung's

Motion

to

Amend.

Furthermore, Nova opposes plaintiff's Motion to Amend. See Dkt.

No. 12. Accordingly, Proeung must obtain the court's permission to
amend her complaint.

The court must "freely give" permission to a party to amend

a pleading "when justice so requires." Fed. R. Civ. P. 15(a)(2).
The Supreme Court has admonished district courts to grant leave to
amend unless there is an "apparent or declared reason—such as

undue delay, bad faith or dilatory motive on the part of the
movant,

repeated

failure

to

cure

deficiencies

by

amendments

previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc." Foman

V. Davis, 371 U.S. 178, 182 (1962). When considering whether an
amendment would be futile, the court "applies the same standard of

legal sufficiency as applies to a Rule 12(b)(6) motion." Classman
V. Computervision Corp., 90 F. 3d 617, 623 (1st Cir. 1996) . In other

words, a complaint is futile if it, "as amended, would fail to
state a claim upon which relief could be granted." Id.

The court must deny a motion to dismiss under Rule 12(b)(6)
for failure to state a claim upon which relief can be granted if

the plaintiff alleges "a plausible entitlement to relief." Bell
Atl.

Corp.

V. Twombly,

550 U.S.

544,

559

(2007).

That is,

complaint "must contain sufficient factual matter,

the

accepted as

true, to state a claim to relief that is plausible on its face."
Ashcroft V. Iqbal, 556 U.S. 662, 678

(2009)

(internal quotations

omitted). A claim is facially plausible if the plaintiff pleads
"factual content

that

allows

the

court

to draw the

reasonable

inference that the defendant is liable for the misconduct alleged."

Id.

at

683.

"Where a

complaint pleads

consistent with a defendant's liability,

line

between

possibility

relief." Id. at 678

and

facts

that

are merely

it stops short of the

plausibility

of

entitlement

to

(internal quotations omitted).

In considering a motion to dismiss under Rule 12(b)(6), the
court must "take all factual allegations as true and . . . draw
all reasonable inferences in favor of the plaintiff." Rodriguez—

Ortiz V. Marao Caribe, Inc., 490 F.Sd 92, 96 (1st Cir. 2007). The

court "neither weighs the evidence nor rules on the merits because
the issue is not whether plaintiffs will ultimately prevail, but

whether they are entitled to offer evidence to support their
claims." Day v. Fallen Cmty. Health Plan, Inc., 917 F. Supp. 72,
75

(D. Mass. 1996).

III.

BACKGROUND

The facts alleged in the proposed amended complaint include
the following.

Proeung began working for Nova in July 2012. See Am. Compl.
SI6 (Dkt. No. 10-1) . In March 2015, she fell at work and suffered

an injury that prevented her from working. See id. SISI8-9. "While
undergoing

treatment

for

her

work-related

injuries,

Proeung

developed Cushings disease from being given too many cortisone

injections over a short period of time . .

. ." Id. SllO. Her

symptoms included trembling and weakness. See id.

In September 2015, Proeung returned to work. See id. S113.

Shortly thereafter, she experienced "uncontrollable trembling and
weakness . . . ." See id. SI14. Nova sent Proeung home and instructed
her not to return until she obtained a physician's clearance. See
id.

In November

2016,

Proeung was

diagnosed with Myasthenia

Gravis. S^ id^ 517. On February 11, 2016, Nova terminated Proeung
because her Myasthenia Gravis prevented her from performing the

requirements of her job, and determined that her Myasthenia Gravis
was unrelated to any injuries she sustained at work. See id. 520.

Upon terminating Proeung, Nova did not provide her with any notice
of her rights under the FMLA. See id. 522.

On February 25, 2016, Proeung signed a Severance Agreement

and Release (the "Agreement") with Nova. See Am. Compl., Ex 2 (Dkt.

No.

10-3).

In

consideration

for

four

weeks

of

severance

pay

($2,030.40), Proeung agreed to:

.

.

.

release

legally

and discharge

releasable

claims,

[Nova]

from any and all

rights,

demands,

debts,

actions, causes of action, suits, agreements, damages,
and liabilities of any nature, at law or in equity, which
I now have or ever had against [Nova], whether known or
unknown, arising out of my employment with or separation
from [Nova], including without limitation . . . the

Family and Medical Leave Act, 29 U.S.C. §2601 et seq.
Agreement at 1-2 of 5 (Dkt. No. 10-3).

The Agreement is in English. However,

intents and purposes,

language

Proeung is "for all

illiterate in English,"

is Cambodian.

Am.

Compl.

SI33

(Dkt.

and her native

No.

10-1) .

The

Agreement was never translated into Cambodian for her. See id.
SI34.

On February 12,

2018,

Proeung filed this action in the

Middlesex Superior Court for the Commonwealth of Massachusetts.
See State Ct. R. at 9-12 of 17 (Dkt. No. 8). She alleges that Nova

failed

to

notify her

of her

rights

under

the

FMLA when it

terminated her, in violation of 29 C.F.R. §825.300.

Nova timely removed to this court. See Dkt. No. 1. On May 31,
2018, Nova moved to dismiss for failure to state a claim upon which
relief can be granted,

see Dkt. No. 6. Rather than oppose the

Motion to Dismiss, Proeung moved to amend the complaint on July

20,

2018.

See Dkt.

No.

10.

She seeks to "add[]

new factual

information, including paragraphs addressing the illegality of the

[Agreement]

.

.

.

Amend as futile.
IV.

Id» Sill. Nova opposes Proeung's Motion to

See Dkt.

No.

12.

DISCUSSION

As indicated earlier, Proeung alleges that Nova violated the
FMLA when it terminated her without providing notice of her rights

under the FMLA.

For the purposes of its Motion to Dismiss and

opposition to Proeung's Motion to Amend, Nova states that whether
the FMLA actually required it to provide Proeung such notice is
"irrelevant." Mem.

Rather,

Supp.

Nova argues

would be futile,

Mot.

that

Dismiss

Proeung's

at

7

n.3

(Dkt.

No.

7).

proposed amended complaint

and that this case should be dismissed, because

Proeung released her FMLA claims by signing the Agreement. Proeung

argues that "her signing was not knowing and voluntary . . . ."
Am. Compl. SI32 (Dkt. No. 10-1).

"At a minimum, judicial review of such waivers and releases

has been designed to ensure that they are ' knowing and voluntary, '"
which

the

First

Circuit

circumstances approach."

assesses

under

Rivera-Flores

v.

a

"totality

Bristol-Myers

of

the

Squibb

Caribbean, 112 F.3d 9, 12 (1st Cir. 1997) (internal quotation marks
omitted). The First Circuit has adopted a non-exclusive list of

six factors set out by the Second Circuit in Finz v. Schlesinger,
957

F.2d

78,

82

(2d

Cir.

1992),

for

determining

whether

an

employee's release was knowing and voluntary. The court considers;

(1) plaintiff's education and business sophistication;
(2) the respective roles of employer and employee in
determining the provisions of the [release]; (3) the
clarity of the agreement; (4) the time plaintiff had to
study the
agreement;
(5)
whether
plaintiff
had
independent advice, such as that of counsel; and (6) the
consideration for the

Rivera-Flores,

Moreover,

[release].

112 F.3d at 12 n.4.

"[w]aiver and release are affirmative defenses on

which the employer bears the burden." Id. at 12. "It is incumbent

upon the employer to establish that the release was knowing and
voluntary." Melanson v.

Browning-Ferris Indus.,

Inc.,

281 F.3d

272, 276 (1st Cir. 2002). The court may only dismiss an action on
the basis of an affirmative defense if "the facts establishing the

defense

[are]

clear on the face of the plaintiff's pleadings."

Blackstone Realty LLC v.
2001)

F.D.I.C.,

244 F.3d 193,

197

(1st Cir.

(internal quotation marks omitted).

In this case, the court finds that the facts establishing the
affirmative defense of release are not clear on the face of the

pleadings.

Rather,

the court finds that the proposed amended

complaint states a plausible claim that Proeung did not sign the
release knowingly and voluntarily.

In opposing Proeung's Motion to Amend, Nova does not address
the Finz factors.
contract

law

that

Rather,

Nova points to a general principle of

"[a]bsent

fraud,

an

individual

who

signs

a

written agreement is bound by its terms whether [s]he reads and
understands them or not." Opp'n Mot. Amend at 4 (quoting Bose Corp.

V. Ejaz, 732 F.3d 17, 22 (1st Cir. 2013)). However, as discussed
earlier, this is not the appropriate standard with regard to the
validity of an employee's release of claims.
Furthermore, taking all of Proeung's factual allegations as

true and drawing all reasonable inferences in her favor, several
of the Finz factors weigh against finding that Proeung's signature

was knowing and voluntary. The Agreement is in English, and Proeung
does not read or write English.

reasonably

infer

that

Therefore,

the Agreement

was

a

not

factfinder could

intelligible

to

Proeung. There is no indication that Proeung had a role in drafting
the Agreement. Moreover, because "Nova never advised Proeung to
consult with an attorney," Am.

Compl.

537,

a factfinder could

reasonably infer that Proeung did not discuss the Agreement with
counsel.

Because Proeung has stated a plausible claim that she did not

sign the release of her FMLA claim knowingly and voluntarily, the
court does not conclude that Proeung's proposed amended complaint
would be futile.
V.

ORDER

In view of the foregoing, it is hereby ORDERED that:
1.

Plaintiff's

Motion

for

Extension

of

Time

to

Amend

Complaint (Docket No. 9) and Motion to Amend Complaint (Docket No.
10)

are ALLOWED.

2.

Defendant's Motion to Dismiss (Docket No. 6)
8

is MOOT.

3.

Defendant shall, by April 5, 2019, respond to or answer

the amended complaint.

4.

This case is REFERRED to the Magistrate Judge for all

pretrial purposes.

UNITEir ST^ES ^STRICT JUDGE