Smith v. McAlister-Smith Funeral Home Inc
Filing
20
ORDER granting 9 Motion to Dismiss; adopting in part 13 Report and Recommendation. The court dismisses plaintiff's complaint without prejudice with leave to re-file an amended complaint within 14 days of the filing of this order. Signed by Honorable David C Norton on 9/25/12.(gcle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
RANDY DWAYNE SMITH,
Plaintiff,
vs.
MCALISTER-SMITH FUNERAL
HOME, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
No. 2:11-cv-03281-DCN
ORDER
This matter is before the court on defendant’s motion to dismiss the complaint.
This case was referred to United States Magistrate Judge Bruce Howe Hendricks for a
report and recommendation (R&R). For the reasons set forth below, the court adopts the
R&R in part and dismisses the case without prejudice.
I. BACKGROUND
Plaintiff Randy Dwayne Smith filed a complaint on December 1, 2011, alleging
that defendant McAlister-Smith Funeral Home, Inc. unlawfully fired him in violation of
the Americans with Disabilities Act (ADA), the Family Medical Leave Act, and his
employment contract. On December 14, 2011, defendant answered the complaint. That
same day, defendant filed a motion to dismiss plaintiff’s ADA and breach of contract
claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On April 27, 2012, the magistrate judge issued an R&R, recommending that the
court dismiss the breach of contract claim and allow plaintiff to amend his ADA claim in
order to provide necessary detail regarding his alleged disability. Both parties timely
objected to the R&R. Plaintiff filed an “amended complaint” on May 14, 2012.
1
Because this matter is before the court on defendant’s motion to dismiss, the
following facts are drawn from plaintiff’s complaint and are construed in the light most
favorable to him. Plaintiff, a resident of Dorchester County, South Carolina, began
working for defendant in January 2008. Compl. ¶ 10. On or about December 28, 2009,
plaintiff was diagnosed with a disability, and was informed by his medical provider that
he could continue to work with certain restrictions. Id. ¶¶ 11, 12. Defendant initially
accommodated plaintiff’s disability. Id. ¶14. On March 29, 2010, however, defendant
terminated plaintiff’s employment. Id. ¶¶ 15-17.
II. STANDARDS OF REVIEW
A. Amending a Complaint
Rule 15(a)(1) of the Federal Rules of Civil Procedure allows a party to amend its
complaint once as a matter of course within 21 days of serving the complaint, or within
21 days after service of a motion to dismiss. Fed. R. Civ. P. 15(a)(1). In all other cases,
a party may amend its complaint “only with the other party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). The Federal Rules instruct courts to “freely give
leave when justice so requires.” Id. However, “[a] district court may deny a motion to
amend when the amendment would be prejudicial to the opposing party, the moving party
has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles
Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
B. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for
“failure to state a claim upon which relief can be granted.” When considering a Rule
12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true
2
and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours
& Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On a motion to dismiss, the court’s task is limited to determining whether the
complaint states a “plausible claim for relief.” Id. at 679. A complaint must sufficient
contain factual allegations in addition to legal conclusions. Although Rule 8(a)(2)
requires only a “short and plain statement of the claim showing that the pleader is entitled
to relief,” “a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Facts pled that are
‘merely consistent with’ liability are not sufficient.” A Soc’y Without a Name v.
Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
III. DISCUSSION
Before turning to the merits of defendant’s motion to dismiss, the court must first
consider whether plaintiff’s amended complaint has been properly filed.
A.
Plaintiff’s Amended Complaint
Plaintiff filed his amended complaint on May 14, 2012, five and a half months
after serving his original complaint and five months after defendant filed its motion to
dismiss. This is well outside the time frame contemplated by Rule 15(a)(1). Plaintiff did
not seek leave of the court before filing his amended complaint. He likewise does not
3
appear to have gained defendant’s consent before filing. Thus, his amended complaint
also fails to comply with Rule 15(a)(2).
Because it does not comply with Rule 15(a), plaintiff’s amended complaint is not
properly before this court and will be stricken.
B.
Count I – Violation of the ADA
The magistrate judge noted that plaintiff “has only pled the legal requirements of
[his ADA] claim, without any factual specificity,” and recommended that the court
provide plaintiff the opportunity to amend his complaint. R&R 3. Defendant objects to
the magistrate judge’s recommendation, arguing that Count I should be dismissed with
prejudice.
To state a claim for discrimination on the basis of disability under the ADA, “a
plaintiff must establish that (1) she has a disability; (2) she is otherwise qualified for the
benefit or program at issue; and (3) she was excluded from the benefit or program on the
basis of her disability.” Smith-Jeter v. City of Columbia, No. 10-1188, 2012 WL 762075,
at *2 (D.S.C. Mar. 8, 2012), aff'd 474 F. App'x 260 (4th Cir. 2012); see also Davis v.
Univ. of N.C., 263 F.3d 95, 99 (4th Cir. 2001); Baird v. Rose, 192 F.3d 462, 467 (4th Cir.
1999). Merely stating that one is disabled is not enough to establish disability. See
Smith-Jeter, 2012 WL 762075, at *2; see also Tolbert v. Charter Commc’n, No. 10-2618,
2011 WL 1335834, at *2 (D.S.C. Feb. 17, 2011) (holding that ADA claim would have
been insufficiently pled but for complaint’s reference to – and plaintiff’s later submission
of – additional documents that described plaintiff’s disability).
Plaintiff’s complaint fails to allege any facts that support his conclusory allegation
that “[o]n or about December 28, 2009, Plaintiff was diagnosed with a disability.”
4
Compl. ¶ 11. This allegation merely states one element of an ADA claim. Because
plaintiff has not identified his disability, his ADA claim does not include factual matter
sufficient to state a plausible claim for relief.
The court agrees with the magistrate judge that plaintiff should be provided with
an opportunity to plead additional facts that would support his ADA claim. For this
reason, Count I of plaintiff’s complaint will be dismissed without prejudice.
C.
Count III – Breach of Contract Claim
The magistrate judge recommended that Count III be dismissed because plaintiff
has failed to allege any employment contract that could be the basis of his breach of
contract claim. R&R 5. As the magistrate judge aptly points out, the parties do not
appear to dispute that plaintiff was an at-will employee. Id. at 3; Pl.’s Mem. 6, 8; Answer
¶ 10. However, plaintiff argues that the mandatory language included in defendant’s
employee handbook gave rise to an employment contract between plaintiff and
defendant. Pl.’s Mem. 6; Pl.’s Obj. 3-5.
“In deciding whether a complaint will survive a motion to dismiss, a court
evaluates the complaint in its entirety, as well as documents attached or incorporated into
the complaint.” Kolon Indus., 637 F.3d at 448. However, the district court cannot go
beyond these documents when considering a Rule 12(b)(6) motion. Id. If the court does
consider documents other than the complaint and those documents that are integral to the
complaint, the court converts the motion into one for summary judgment. Id. (citing Fed.
R. Civ. P. 12(b), 12(d), 56). Such conversion is inappropriate where the parties have not
had an opportunity to conduct reasonable discovery. Kolon Indus., 637 F.3d at 448.
5
While plaintiff attached defendant’s employee handbook (or portions thereof) to
his opposition to the motion to dismiss, his objections to the R&R, and his improperly
filed amended complaint, he neither attached nor referenced the employee handbook in
the operative complaint. As a result, the court may not consider the employee
handbook’s language on this motion to dismiss.1
Plaintiff has pled no facts suggesting that he had an employment contract with
defendant. The statements that “the Defendant and the Plaintiff entered into a contract
whereby it agreed to employ the Plaintiff,” and that “in breach of the contract, the
Defendant wrongfully terminated the Plaintiff’s employment” are merely legal
conclusions that are unsupported by factual allegations. Compl. ¶¶ 40, 41. These
statements are not enough to support a breach of contract claim.
For these reasons, Count III will be dismissed without prejudice.
IV. CONCLUSION
Based on the foregoing, plaintiff’s “amended complaint,” ECF No. 16, is stricken
from the record as improperly filed. The court GRANTS defendant’s motion to dismiss
1
The court notes that in South Carolina, employment is presumed to be at will. Prescott v.
Farmers Tel. Coop., Inc., 516 S.E.2d 923, 925, 927 n.8 (S.C. 1999). It is true that at-will
employment arrangements may be modified by “mandatory, progressive discipline procedures”
set out in an employee handbook. Hessenthaler v. Tri-County Sister Help, Inc., 616 S.E.2d 694,
698 (S.C. 2005). Non-discrimination policies described in an employee handbook, on the other
hand, are not sufficient either to alter an at-will employment relationship or to give rise to a
breach of contract claim. Id. (“Unlike a mandatory, progressive discipline procedure, a general
policy statement of nondiscrimination does not create an expectation that employment is
guaranteed for any specific duration or that a particular process must be followed before an
employee may be fired.”); see also King v. Marriott Int’l, Inc., 520 F. Supp. 2d 748, 756-57
(D.S.C. 2007) (finding that a general nondiscrimination policy did not create a contract or
otherwise alter the plaintiff’s at-will employment status).
At this time, the court need not reach the issue of whether the language contained in defendant’s
employee handbook gave rise to an employment contract. The complaint, as it stands, simply
does not contain sufficient factual material to survive a motion to dismiss.
6
and DISMISSES WITHOUT PREJUDICE plaintiff’s complaint, ECF No. 1. Plaintiff
shall have leave to re-file an amended complaint within 14 days of the filing of this order.
AND IT IS SO ORDERED.
_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 25, 2012
Charleston, South Carolina
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?