Kiser v. Capano & Associates LLC et al
OPINION AND ORDER granting in part and denying in part 9 Defendants' Partial Motion to Dismiss, to the extent that the Court finds individual Defendant Jeffrey Capano outside the scope of Title VII. Defendant Capanao & Associates, LLC, howeve r remains as a Defendant in relation to Count One. The Court further construes Plaintiff's oral motion at the 10/7/2014 pretrial conference for leave to file an Amended Complaint as a valid request and GRANTS Plaintiff ten days from the date of this Order to file such Complaint. Signed by Judge S Arthur Spiegel on 10/9/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
CATHERINE S. KISER,
CAPANO & ASSOCIATES, LLC,
OPINION AND ORDER
This matter is before the Court on Defendants’ Partial
Motion to Dismiss (doc. 9), Plaintiff’s Response in Opposition
(doc. 11), and Defendants’ Reply (doc. 13).
The Court discussed
the parties’ positions on the matter at the October 7, 2014
conference, at which time it orally directed Plaintiff’s Counsel to
file an Amended Complaint.
This Order issues so as to memorialize
the Court’s decision, granting-in-part Defendants’ Motion.
This is an employment case in which Plaintiff alleges
Jeffrey Capano, the President of Defendant Capano & Associates,
LLC, engaged in improper behavior amounting to sexual harassment
and a hostile work environment (doc. 1).
Plaintiff alleges five
separate causes of action, including a claim for sex discrimination
under Title VII and Section 1981(a); a claim for state law sex
discrimination; a claim for intentional infliction of emotional
distress; defamation-slander per se; and negligent infliction of
emotional distress (Id.).
In their motion, Defendants attack Plaintiff’s first
claim, against individual Defendant Jeffrey Capano, contending
there is no individual or supervisor liability under Title VII
They further attack Plaintiff’s defamation claim as
inadequately pled for failure to plead that allegedly defamatory
statements were false (Id.).
In her briefing, Plaintiff contends that individual
statutory definition (doc. 11).
She further contends that because
she alleges Capano maligned her and made statements maliciously,
she has adequately pled defamation per se (Id.).
requests, in the alternative, leave to amend her Complaint (Id.).
Having reviewed this matter, the Court concludes that Mr.
Capano does not qualify as “an employer” within the meaning of
Wathen v. General Electric Co., 115 F.3d 400, 405 (6th
Cir. 1997)(Congress did not intend to provide for individual
Defendants’ partial motion as to Capano’s individual liability is
However, even a cursory review of the Complaint
reveals that Plaintiff was allegedly subjected to boorish behavior
and maligned in an outrageous and patently offensive manner. Under
such circumstances and taking into account the liberal standard of
Fed. R. Civ. P. 15, the Court finds it appropriate to allow
Plaintiff to file an Amended Complaint to address the deficient
pleading as to Plaintiff’s defamation claim or to abandon such
The Court notes that Defendants contend Plaintiff brought
her motion to amend within her Response, which is technically not
the proper procedure (doc. 13, citing Metro. Prop. & Cas. Ins. Co.
v. Pest Doctor Sys., Inc., No. 3:14-CV-00143, 2014 U.S. Dist. LEXIS
86647, at *14 (S.D. Ohio, June 23, 2014).
However, the Court
conference as adequate within the meaning of Fed. R. Civ. P.
Moreover the Court finds permitting Plaintiff to file
an Amended Complaint consistent with the interests of justice in
Accordingly, the Court GRANTS IN PART Defendants’ Partial
Motion to Dismiss (doc. 9) to the extent that it finds individual
Defendant Capano & Associates, LLC, however remains as a Defendant
in relation to Count One.
The Court further construes Plaintiff’s
oral motion as a valid request for leave to file an Amended
Complaint and GRANTS Plaintiff ten days from the date of this Order
to file such Complaint.
Dated: October 9, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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