LOWES v. THE SUMMIT SCHOOL, INC. et al

Filing 44

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum and Order filed herewith, Defendant's Motion for Sanctions (Doc. 38 ) is GRANTED, and Count IV of the First Amended Complaint is STRICKEN. Signed by Judge Cathy Bissoon on 1/19/18. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL LOWES,

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Plaintiff,
v.
THE SUMMIT SCHOOL, INC.,
Defendant.

Civil Action No. 17-688
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I.

MEMORANDUM

Pending before the Court is a Motion for Rule 11 Sanctions filed by Defendant The
Summit School, Inc. (Doc. 38). For the reasons that follow, Defendant’s Motion will be
GRANTED, and Count IV of the First Amended Complaint will be STRICKEN.
On May 26, 2017, Plaintiff filed a complaint asserting nine counts against Defendant,
including two counts pursuant to the Family Medical Leave Act (“FMLA”). (See Doc. 1).
According to Defendant, prior to filing its Motion to Dismiss, “counsel for Defendant sent
documentation to Plaintiff’s counsel from Plaintiff’s employee file indicating the specific notice
that was provided to Plaintiff regarding his FMLA leave.” (Doc. 38 ¶ 3). Defendant claims that,
based on these communications, counsel for Plaintiff voluntarily dismissed his FMLA counts
without prejudice. (Doc. 38 ¶ 4). Defendant thereafter filed a Motion to Dismiss, which the
Court granted on December 7, 2017. On that same day, Plaintiff filed a First Amended
Complaint, which contained a renewed FMLA claim related to Defendant’s alleged failure to
inform him of his rights under the FMLA. (Doc. 26 ¶¶ 81-88).

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Defendant argues that Plaintiff’s renewed FMLA claim has no evidentiary support, and
thus Rule 11 sanctions are warranted. Rule 11 requires counsel, when presenting a pleading,
motion or other paper to the court, to perform a reasonable inquiry to ensure that “the factual
contentions have evidentiary support or, if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery.” See FED. R. CIV.
P. 11; Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (quoting Lieb v. Topstone Indus., Inc.,
788 F.2d 151, 157 (3rd Cir. 1986)) (“To comply with these requirements, counsel must conduct
‘a reasonable investigation of the facts and a normally competent level of legal research to
support the presentation.’”).
The Court agrees with Defendant that Rule 11 sanctions are warranted. As an initial
matter, the Court finds that, despite this being his second bite at the apple, Plaintiff’s First
Amended Complaint does not state a plausible FMLA claim against Defendant. Apart from his
conclusory allegation in Count IV that Defendant “failed to inform [him] of his rights under the
FMLA,” (Doc. 26 ¶ 86), Plaintiff makes no factual allegation that Defendant failed to provide
him with some required information or documentation regarding his entitlement to FMLA leave.
To the contrary, Plaintiff specifically alleges in his amended pleading that his supervisor
“instructed him to contact Human Resources about taking leave under the [FMLA]” and that he
“contacted Human Resources and was granted FMLA leave.” (Doc. 26 ¶¶ 8-9). Thus, Plaintiff
concedes that, at least at some point, Defendant did notify him of his right to take FMLA leave
and that he was permitted to take such leave.
Furthermore, Plaintiff concedes that defense counsel sent to Plaintiff’s counsel
documentation from Plaintiff’s employee file demonstrating that Plaintiff was provided with
written notice regarding his FMLA leave. (Doc. 42 ¶ 3). Plaintiff’s response that he “does not

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remember seeing these papers, that the handwriting on the mail receipt is not his, and that after
looking through his papers, the notice was never found” does not in any way contradict
Defendant’s position that it sent these documents to Plaintiff’s residence. (Id.). In determining
whether Defendant has violated the FMLA’s notice requirements, the relevant question is
whether Defendant sent the requisite written notice, not whether Plaintiff recalls receiving and/or
reviewing it. See 29 C.F.R. § 825.300(c)(1) (employers are required to provide written notice to
employees of their rights and responsibilities in connection with eligibility determinations).
Because Plaintiff once again fails to state a claim for relief under the FMLA, and because
there is no factual basis to support such a claim, the Court will grant Plaintiff’s Motion for Rule
11 sanctions and strike Count IV from the First Amended Complaint.
II.

ORDER

For the reasons stated herein, Defendant’s Motion for Sanctions is GRANTED, and
Count IV of the First Amended Complaint is STRICKEN.

IT IS SO ORDERED.

January 19, 2018

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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