Miller v. Food Concepts International, LP et al

Filing 80

ORDER: Motions 72 , 73 , 74 , 77 and 79 are STAYED. Signed by Magistrate Judge Mark R. Abel on 02/10/2015. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Stephanie Swint,

:
Plaintiff

Consolidated Abuelo Cases filed in
2013:

:

:
:

Judge Marbley

:

v.

2:13-cv-0124
2:13-cv-0125
2:13-cv-0126
2:13-cv-0127
2:13-cv-0129
2:13-cv-0130
2:13-cv-0131
2:13-cv-0132
2:13-cv-0133
2:13-cv-0134

Magistrate Judge Abel

:

Food Concepts International, LP, et al. ,
Defendants

:
:
:

(Miller)
(Crozier)
(Coleman)
(Gibbs)
(Johnson)
(Troyer)
(Autrey)
(Tigner)
(McEldowney)
(Keegan)

Status Conference Order
On February 9, 2015, counsel for plaintiffs and defendants participated in a status
conference with the Magistrate Judge.
Defendants’ counsel requested the conference to ask for an order staying further
briefing on the motions plaintiffs filed after defendants’ filed their brief on January 12,
2015 in opposition to plaintiffs’ motions for leave to amend the complaint to add an
Ohio law tip pool claim.
History of amendments to the pleadings. The original complaints pleaded claims
for employment discrimination, negligent hiring, supervision and retention, intentional
infliction of emotional distress, violation of Ohio minimum wage standards and the

FLSA, and termination in violation of public policy. (Doc. 4.) The March 12, 2013 Scheduling Conference Order noted that the complaints in most of the cases contained identical allegations. It ordered that “plaintiffs’ counsel provide defendants’ counsel with an
individualized statement of the claims against each defendant, including the dates on
which the actionable conduct allegedly took place.” (Doc. 9, PageID 74.) A date for that
statement was to be established by counsel’s joint proposed scheduling order. The
March 25, 2013 Scheduling Order provided that any motion for leave to amend the
pleadings must be filed on or before May 22, 2013. (Doc. 12, PageID 82.) An attempted
mediation on April 24, 2013 was unsuccessful because of “defendants’ concern that
they did not know enough about the particulars of the individual plaintiff’s claims to
fully evaluate the cases for settlement.” (April 25, 2013 Scheduling Conference Order,
Doc. 16, PageID 96.) The Scheduling Conference Order set out the Rule 8(a)(2) standard
for a complaint:
A complaint must give defendants fair notice of the claims a plaintiff makes against them and the grounds on which those claims rest. Rule
8(a), Fed. R. Civ. P.; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although Rule 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief,” it is not true that
notice pleading means that a complaint need plead no facts. The form
complaints appended to the Federal Rules of Civil Procedure all include
basic facts, such as the date the actionable event(s) took place and a brief
description of them. E.g., Forms 9-14 and 17. The United States Supreme
Court further articulated the Twombly Rule 8(a) test in Ashcroft v. Iqbal, 129
S.Ct. 1937, 1349-50 (2009):
As the Court held in Twombly, 550 U.S. 544 (2007), the pleading standard Rule 8 announces does not require "detailed
factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at
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555,(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932,
92 L.Ed.2d 209 (1986)). A pleading that offers "labels and
conclusions" or "a formulaic recitation of the elements of a
cause of action will not do." 550 U.S., at 555. Nor does a
complaint suffice if it tenders "naked assertion[s]" devoid of
"further factual enhancement." Id., at 557.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face." Id., at 570. 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. Id., at 556.
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Ibid. Where a complaint
pleads facts that are "merely consistent with" a defendant's
liability, it "stops short of the line between possibility and
plausibility of 'entitlement to relief.' "Id., at 557 (brackets
omitted).
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice. Id. at 556. (Although for the purposes of a motion to
dismiss we must take all of the factual allegations in the
complaint as true, we "are not bound to accept as true a legal
conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of
a prior era, but it does not unlock the doors of discovery for
a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the
Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the
well-pleaded facts do not permit the court to infer more than
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the mere possibility of misconduct, the complaint has
alleged–but it has not "show[n]"--"that the pleader is entitled
to relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a
motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.
The Supreme Court went on to hold that a prisoner who pleaded that
defendants "’knew of, condoned, and willfully and maliciously agreed to
subject [him]’ to harsh conditions of confinement ‘as a matter of policy,
solely on account of [his] religion, race, and/or national origin and for no
legitimate penological interest,’" that a high-ranking official “was the
‘principal architect’ of this invidious policy,” “and that [another highranking official] was ‘instrumental’ in adopting and executing it,” failed to
plead more than “bare assertions” that “amount[ed] to nothing more than
a ‘formulaic recitation of the elements’ of a constitutional discrimination
claim,” and that such conclusory allegations were “not entitled to be
assumed true.” Iqbal, 129 S.Ct. at 1951.
Id., PageID 97-99.
Plaintiffs filed an amended complaint on October 15, 2013. (Doc. 28.) That complaint pleaded claims for violations of the FLSA, common law breach of contract for
wages, and discrimination in violation of Ohio law. There was no Ohio tip pool or other
wage and hour claim.
On October 18, 2013, plaintiffs were ordered to show cause why there lawsuits
should not be dismissed with prejudice for failure to file complaints meeting the notice
requirements of Rule 8(a), Fed. R. Civ. P. and for failing to comply with the October 3,
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2013 Order, the March 25 Agreed Order that an amended complaint be filed by March
27, 2013, the April 25, 2013 Scheduling Order that an amended complaint be filed on or
before May 17, 2013, and the July 2, 2013 Scheduling Conference Order that an amended complaint be filed on or before July 16, 2013. On January 17, 2014, the Magistrate
Judge filed an Order and Report and Recommendation that came to the following
conclusions:
Counsel for plaintiffs has repeatedly failed to provide complaints
which comply with the requirements of Rule 8(a) of the Federal Rules of
Civil Procedure despite several Orders requiring him to do so. I recognize
that the tendered amended complaint contains allegations that Del
Vecchio told Autrey, Johnson, and perhaps others to seat non-Caucasian
patrons in non-Caucasian seating areas and Caucasians in Caucasian seating areas and to assign non-Caucasians to serve non-Caucasian patrons.
However, there are no factual allegations meeting the requirements of
Rule 8(a) that a complaint give defendants fair notice of the claim against
them regarding the individual server plaintiffs. There are conclusory
allegations that there were race targeted employees and lifestyle targeted
employees, but no facts pleaded, even as examples, about how Del
Vecchio or Myers acted to subject those plaintiffs to discrimination,
harassment, or retaliation. As a result, I RECOMMEND that plaintiffs’
claims for violation of the FLSA and breach of contract for wages and
benefits, plaintiff Autrey’s claims for hostile work environment against
defendants Del Vecchio, Food Concepts International, LP, and Abuelo’s
Inter-national LP, and plaintiff Johnson’s claim for discrimination, segregation of separation against defendants Del Vecchio, Food Concepts
International, LP, and Abuelo’s International LP proceed. It is FURTHER
RECOMMENDED that all other claims for Retaliation-Discrimination in
Violation of O.R.C. §4112.02(1) and O.R.C. §4112.99; Retaliation -42 U.S.C.
§1981; Aiding, Abetting and Interference- Discrimination in Violation of
O.R.C. §4112.02(1) and O.R.C. §4112.99; Discrimination, Segregation or
Separation because of Ancestry, Color, National Origin, Race or ReligionHarassment-Hostile Work Environment; and, Retaliation - Discrimination
- Harassment - Loss of Tangible Job Benefits be DISMISSED with
PREJUDICE for counsel’s failure to tender amended complaints meeting
the fair notice requirements of Rule 8(a), Fed. R. Civ. P.
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(Doc. 36, PageID 459-60.) On February 18, 2014, Judge Marbley filed an Order adopting
this Report and Recommendation. (Doc. 38.)
In October 2014, plaintiffs’ counsel requested a conference to discuss discovery
relating to tip pool FLSA claims. During an October 18, 2014 conference, plaintiffs counsel said that his clients intended to amend their complaints and it was ordered that
plaintiffs file any motion for leave to amend on or before December 5, 2014. (November
3, 2014 Discovery Dispute and Scheduling Conference Order, Doc. 49.) On December 8,
2014, over the objection of defendants, plaintiffs’ motions for extensions of time to and
including December 10, 2014 to file their motion to amend was granted. (Docs. 56, 57
and 59.) On December 10, 2014, plaintiffs filed motions to compel discovery (docs. 61
and 62) and motions for leave to file a second amended complaint. (Doc. 60.) Many of
the motions to amend were not supported by a proposed amended complaint. On January 12, 2015, defendants filed motions to strike the affidavits supporting the motions
for leave to amend (docs. 63-65), their responses to the motions to compel (doc. 67), and
their responses to the motions to amend. (Doc. 66.) On January 26, 2015, plaintiffs filed
motions to stay the motions to strike affidavits. (Docs. 72-74.) On January 29, 2015,
plaintiffs filed motions for leave to supplement their motions for leave to file second
amended complaints. (Doc. 77.) On January 30, 2015, plaintiffs filed motions to supplement their motions to compel discovery. (Doc. 79.)
A party should submit all evidence supporting a motion with the motion. S.D.
Ohio Civ. Rule 7.2(d). Plaintiffs have failed to demonstrate good cause for supplement6

ing their motions for leave to file second amended complaints. They waited until after
defendants had expended the money to once again brief issues related to plaintiffs’
pleadings. Plaintiffs’ counsel has failed to meet deadlines in this case repeatedly. The
“just, speedy, and inexpensive determination” of this case would not be furthered by
permitting piecemeal briefing of the motions for leave to file second amended complaints. Accordingly, further briefing on plaintiffs’ January 26, 2015 motions to stay the
motions to strike affidavits (docs. 72-74), their January 29, 2015 motions for leave to
supplement their motions for leave to file second amended complaints (doc. 77), and
their January 30, 2015 motions to supplement their motions to compel discovery (doc.
79) is STAYED.

s/Mark R. Abel
United States Magistrate Judge

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