Bonner v. Scope Services Incorporated et al

Filing 17

REPORT AND RECOMMENDATIONS: that Duke Energy's unopposed motion to dismiss (Doc. 5) be GRANTED and Duke be dismissed; that the motions of Snope Services and Utility Outsouce be DENIED AS MOOT in light of the filing of plaintiff's first amended complaint. Objections to R&R due by 5/24/2012. Signed by Magistrate Judge Stephanie K. Bowman on 5/7/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KAREEM ABDUL BONNER,

Case No. 1:12-cv-32

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

SCOPE SERVICES INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
I. Procedural Background
On January 13, 2012, Plaintiff, proceeding pro se, initiated this employment
discrimination case.

Plaintiff originally named as defendants: 1) Scope Services

Incorporated; 2) Utility Outsource Services Inc.; 3) Duke Energy and/or Duke Energy
Corporation.
On February 9, 2012, Defendant Duke Energy filed a motion to dismiss. (Doc. 5).
On March 13, 2012, the Court granted Defendant Utility Outsource Services leave to file
its own motion to dismiss; or in the alternative, for a more definite statement. On March
6, 2012, Defendant Scope Services Incorporated also filed a motion to dismiss.
In addition to granting Defendant Utility Outsource Services leave to file its motion
to dismiss, the Court’s March 13 Order granted Plaintiff a thirty (30) day extension of time
to respond to all pending motions to dismiss. (Doc. 11). On April 16, 2012, counsel

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entered his appearance on behalf of the previously pro se Plaintiff. (Doc. 13). On the
same date, Plaintiff filed a motion “to clarify” the Court’s March 13 Order, or in the
alternative, for an additional extension of time to respond to the pending motions.
Plaintiff’s motion also sought “to respond to all pending motions by filing an amended
complaint.”
On April 24, 2012, the Court found that good cause existed for an additional
extension of time, as well as for the filing of an amended complaint.1 Although Plaintiff’s
motion suggested that his new counsel “may not intend to file any formal response to the
three pending motions to dismiss,” the Court expressly directed Plaintiff to file at least “a
minimal response” to the three pending motions to dismiss “in order to clarify the record.”
(Doc. 15 at 2). The Court explained: “To the extent that Plaintiff suggests that ‘many’ of
the issues presented in the three motions to dismiss are likely to be rendered moot by the
anticipated amended complaint, he may state that in his written response(s), but he should
more fully respond to any issues that remain pertinent to the amended complaint.” (Id. at
2-3). The Court ordered Plaintiff not only to file any amended complaint by April 30, but
also to “file a single combined response or multiple responses to the three pending motions
to dismiss on or before April 30, 2012." (Id. at 3, ¶2).
One day after the Court’s deadline, on May 1, 2012, Plaintiff filed a “First Amended
Complaint.” (Doc. 16). However, Plaintiff has failed to file any response to the three
pending motions to dismiss.

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The Court’s order noted that Plaintiff’s m otion to file an am ended com plaint was being granted
without prejudice to any Defendant’s right to oppose the am ended com plaint through a new m otion to
dism iss.

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The caption of Plaintiff’s amended complaint lists “Scope Services Incorporated, et
al.” as the “Defendants” to this action. Whereas Plaintiff’s initial pro se complaint identified
three Defendants including Duke Energy, the body of the amended complaint now lists only
two of the original Defendants: “Utility Outsource Services Inc.” and “Scope Services, Inc.”
(Doc. 16, ¶¶5,6). Plaintiff’s amended complaint describes as an action “for damages and
equitable relief” based upon a retaliation claim under Ohio’s worker’s compensation law,
and “for damages and equitable relief for disability, race, and color, and retaliation in
violation of Ohio’s employment discrimination statutes (Ohio Rev. Code §§4112.02 et
seq.), Title VII of the Civil Rights Act of 1964, and the American with Disabilities Act.” (Doc.
16, ¶1).
As Plaintiff has failed to file any timely response to the three motions to dismiss, the
Court will now review those motions, taking into consideration the Plaintiff’s amended
complaint.
II. Analysis
A. Duke Energy’s Motion to Dismiss (Doc. 5)
In its pending motion to dismiss, Duke Energy argues that it is entitled to dismissal
of all claims brought by Plaintiff against it because: (1) it was not Plaintiff’s employer; (2)
Plaintiff failed to allege facts sufficient to support any cause of action against Duke Energy;
(3) Plaintiff failed to exhaust his administrative remedies with respect to his Title VII claims
against Duke Energy; and (4) the Court lacks subject matter jurisdiction over Plaintiff’s
state law claim for workers’ compensation retaliation because Plaintiff failed to satisfy the
notice requirements of Ohio Revised Code §4123.90.

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Plaintiff has failed to file any opposition to Duke Energy’s motion. Moreover,
Plaintiff’s amended complaint omits Duke Energy as a named Defendant. For the reasons
stated in Duke Energy’s unopposed motion and for the additional reason that Plaintiff has
clearly abandoned all claims against Duke Energy, Duke Energy’s motion to dismiss (Doc.
5) should be granted.
B. The Motions of Snope Services, Inc. and of Utility Outsource
Services, Inc. to Dismiss or in the Alternative, for a More Definite
Statement (Docs. 8, 12).
The two motions filed by Snope Services, Inc. and Utility Outsource Services, Inc.
both seek dismissal in part because Plaintiff’s original pro se complaint failed to request
either legal or equitable remedies for his claims, and instead sought only “the platform to
seek justice” as relief. (Doc. 3 at 6). Both Defendants also sought dismissal because
Plaintiff’s original complaint failed to allege basic facts regarding his race or national origin
in order to assert a claim for racial discrimination. The noted facial deficiencies of Plaintiff’s
pro se pleading appear to have been cured by the filing of Plaintiff’s first amended
complaint.

Therefore, the separate motions of Snope Services, Inc. and of Utility

Outsource Services, Inc. to dismiss or for a more definite statement should be denied as
moot.
III. Conclusion and Recommendations
For the reasons stated herein, IT IS RECOMMENDED:
1. That Defendant Duke Energy’s unopposed motion to dismiss (Doc. 5) be
GRANTED and that all claims against Duke Energy be dismissed with prejudice;
2. That the motions of Defendants Snope Services, Inc. and of Utility Outsource

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Services, Inc. to dismiss or for a more definite statement (Docs. 8, 12) be DENIED AS
MOOT in light of the filing of Plaintiff’s first amended complaint.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KAREEM ABDUL BONNER,

Case No. 1:12-cv-32

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

SCOPE SERVICES INC., et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of the
filing date of this R&R. That period may be extended further by the Court on timely motion
by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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