Collum v. PayPal

Filing 8

MEMORANDUM OPINION - The Court previously granted Collum the opportunity to amend (see filing no. 6 ), his motion to amend is granted and the Court will consider Collum's amended allegations "as supplemental to, rather than as supersed ing" his original Complaint. Collum's amended allegations, even when considered as supplemental to his original complaint, are insufficient to nudge his "claims across the line from conceivable to plausible." Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN T. COLLUM,
Plaintiff,
v.
PAYPAL,
Defendant.

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8:12CV153

MEMORANDUM OPINION

On July 3, 2012, the Court conducted an initial review
of plaintiff Brian T. Collum’s (“Collum”) complaint and concluded
that his general allegations of harassment, discrimination, and
other issues in the workplace did not state a claim upon which
relief could be granted (Filing No. 6).

However, the Court

provided Collum with the opportunity to file an amended
complaint.

(Id.)
On July 13, 2012, Collum filed an untitled motion

asking the Court to amend the documents he already filed in this
case (Filing No. 7 at CM/ECF p. 1).

The Court liberally

construes this filing as a motion to amend complaint.

Rule 15(a)

of the Federal Rules of Civil Procedure provides that the Court
should freely give leave to amend “when justice so requires.”
The applicable standard is summarized in Foman v. Davis, 371 U.S.
178, 182 (1962), which states:
If the underlying facts or
circumstances relied upon by a
plaintiff may be a proper subject
of relief, he ought to be afforded

an opportunity to test his claims
on the merits. In the absence of
any apparent reason –- such as
undue delay, bad faith or dilatory
motive on the part of the movant,
. . . undue prejudice to the
opposing party by virtue of the
allowance of the amendment,
futility of amendment, etc. –- the
leave sought should, as the rules
require, be “freely given.”
Because the Court previously granted Collum the
opportunity to amend (see filing no. 6), his motion to amend is
granted and the Court will consider Collum’s amended allegations
“as supplemental to, rather than as superseding” his original
Complaint.

See NECivR 15.1.
In his motion, Collum states that, due to harassment

from his coworkers, he became clinically depressed and was placed
on short-term disability (Filing No. 7 at CM/ECF pp. 1-4).
Collum adds that defendants fired him on December 28, 2010, but
he does not explain why.

(Id.)

As the Court previously explained in its July 3, 2012,
memorandum and order, this case represents Collum’s fourth
attempt, in this Court, to sue his previous employer, PayPal.
(See Collum v. PayPal, Inc., Case No. 8:10CV452, Filing No. 22
(dismissing Collum’s allegations of harassment, discrimination,
and other issues in the workplace because Collum failed to state
a claim under the Family and Medical Leave Act (“FMLA”) or any
other federal statute); Collum v. PayPal, Inc., Case No.

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8:11CV12, Filing No. 16 (dismissing Collum’s allegations that
PayPal discriminated against him in violation of the Americans
with Disabilities Act (“ADA”) because he failed to allege that he
exhausted his administrative remedies prior to filing suit);
Collum v. PayPal, Case No. 8:12CV17, Filing No. 18 (dismissing
Collum’s defamation and false light claims against PayPal for
lack of subject matter jurisdiction).)

Collum’s amended

allegations, even when considered as supplemental to his original
complaint, are insufficient to nudge his “claims across the line
from conceivable to plausible.”

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1950 (2009) (“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.”).

Indeed, Collum does not allege that he

was fired because he is a member of a protected group or because
he is disabled.

Moreover, Collum does not allege that there was

a causal connection between his exercise of FMLA leave and his
termination, nor that any harassment he experienced resulted from
his depression.

See Ryan v. Capital Contractors, Inc., 679 F.3d

772, 778 (8th Cir. 2012) (holding that to state a hostile work
environment claim under the ADA, a plaintiff must show “that he
is a member of the class of people protected by the statute, that
he was subject to unwelcome harassment, that the harassment

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resulted from his membership in the protected class, and that the
harassment was severe enough to affect the terms, conditions, or
privileges of his employment”).

A separate order will be entered

in accordance with this memorandum opinion.
DATED this 14th day of August, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
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directs the user to some other site does not affect the opinion
of the Court.
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