Troyer v. Food Concepts International, LP et al

Filing 40

ORDER adopting Report and Recommendations re 38 Report and Recommendations.; denying 20 Motion to Dismiss. Signed by Judge Algenon L. Marbley on 2/18/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH MILLER, et al.,
Plaintiffs,
v.
FOOD CONCEPTS
INTERNATIONAL, LP, et al.,
Defendants.

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Consolidated 2013 Abuelo Cases:
Case No. 2:13-CV-00124 (Miller)
No. 2:13-CV-00125 (Crozier)
No. 2:13-CV-00126 (Coleman)
No. 2:13-CV-00127 (Gibbs)
No. 2:13-CV-00129 (Johnson)
No. 2:13-CV-00130 (Troyer)
No. 2:13-CV-00131 (Autrey)
No. 2:13-CV-00132 (Tigner)
No. 2:13-CV-00133 (McEldowney)
No. 2:13-CV-00134 (Keegan)
JUDGE ALGENON L. MARBLEY
Magistrate Judge Abel

ORDER
This matter is before the Court on the United States Magistrate Judge’s Report and
Recommendation (Doc. 36),1 recommending that Plaintiffs’ claims under the Fair Labor
Standards Act (“FLSA”) and breach of contract for wages and benefits, as well as Plaintiff
Autrey’s claims for hostile work environment against Defendants Del Vecchio, Food Concepts
International, LP, and Abuelo’s International LP, and Plaintiff Johnson’s claim for
discrimination, segregation of separation against defendants Del Vecchio, Food Concepts
International, LP, and Abuelo’s International LP be allowed to proceed; but that all other claims
by Plaintiffs be dismissed with prejudice, on account of Plaintiffs’ counsel’s failure to tender
Amended Complaints meeting the requirements of Fed. R. Civ. P. 8(a). (Id. at 72-73).
The Complaint in this case (Doc. 4) was filed February 12, 2013. Since then, Defendants
have requested on three separate occasions that Plaintiffs file a Complaint that complies with the
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For simplicity, references to the docket refer to filings in Miller v. Food Concepts Int’l LP, No. 2:13-CV-00124.

basic notice requirements of Fed. R. Civ. P. 8(a), or for the case to be dismissed. (See Doc. 11,
14, 17). The Court has twice ordered Plaintiffs to file complaints that meet these requirements.
(See Doc. 27, 30). Defendants’ Motion to Dismiss (Doc. 17) for failure to comply with Court
Order, under Fed. R. Civ. P. 41(b), remains pending before the Court. Plaintiffs’ Amended
Complaint was filed October 15, 2013 (Doc. 28), but its deficiencies compelled the Court to
Order Plaintiffs to show cause why their lawsuit should not be dismissed. (Doc. 30).
As a result of that Order, the Magistrate Judge issued the Report and Recommendation
sub judice. (Doc. 36). The Report and Recommendation discusses at length Plaintiffs’ repeated
failures to comply with the Court’s Orders, as well as the allegations related to each Plaintiff. It
concludes that Plaintiffs have succeeded in stating several causes of action, which should
proceed, but have failed to comply with the pleading requirements of Fed. R. Civ. P. 8(a) with
respect to all others. The Parties were specifically advised of their right to object to the Report
and Recommendation, and of the consequences of their failure to do so. (Id. at 73). No
objection has been filed.
Since neither party has objected, deadline for such objections elapsed on January 31,
2014, and this Court agrees with the Magistrate Judge’s conclusion and analysis, the Court
ADOPTS the Report and Recommendation. 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 International
LP, and Plaintiff Johnson’s claim for discrimination, segregation of separation against
defendants Del Vecchio, Food Concepts International, LP, and Abuelo’s International LP shall
PROCEED. All other claims for: retaliation and/or discrimination in violation of O.R.C.
§4112.02(1), O.R.C. §4112.99, and 42 U.S.C. §1981; aiding, abetting and interference with

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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 religion; harassment,
hostile work environment; and, retaliation, discrimination, harassment, loss of tangible job
benefits are DISMISSED with PREJUDICE.
In addition, in light of this Order, and the Court’s Order permitting Plaintiffs to file an
Amended Complaint (Doc. 27), Defendants’ Motion to Dismiss (Doc. 17) is DENIED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: February 18, 2014

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