Born v. Milwaukee County et al

Filing 23

ORDER signed by Judge J.P. Stadtmueller on 7/12/2018: GRANTING 11 Defendant's Motion to Dismiss and DISMISSING 4 Plaintiff's First Amended Complaint. Plaintiff to FILE a second amended complaint by 8/2/2018 or this action will be dismissed with prejudice; no extensions of this deadline will be considered. See Order. (Attachments: # 1 Non-prisoner pro se complaint form and guide) (cc: all counsel, via mail to Susan M. Born) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SUSAN M. BORN,
Plaintiff,
v.
MILWAUKEE COUNTY,

Case No. 17-CV-1783-JPS

ORDER

Defendant.
Plaintiff filed this action on December 21, 2017, making wideranging allegations about a disability and being underpaid for overtime
work. (Docket #1). On January 9, 2018, the Court screened her complaint
and ordered her to amend her pleading to offer more precise factual
allegations which might state claims for relief. (Docket #3). She did so on
January 30, 2018. (Docket #4). Though the Court had reservations about her
amended complaint, the Court believed that the best course was to allow
Plaintiff to proceed and let Defendant file any dispositive motions it felt
were appropriate. (Docket #5).
Defendant did indeed file a motion to dismiss on May 25, 2018.
(Docket #11). The Court previously noted that Plaintiff’s allegations
invoked the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a),
and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a). (Docket #5
at 1). As to the ADA, Defendant argues that Plaintiff’s failure to identify a
specific disability dooms the claim. (Docket #12 at 2–3); Tate v. SCR Med.
Transp., 809 F.3d 343, 345–46 (7th Cir. 2015). As to the FLSA, Defendant
asserts that the amended complaint is so short on specifics about when and
how Plaintiff was underpaid that the claim falls below the minimum level

of plausibility. (Docket #12 at 3–5); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007) (“Factual allegations must be enough to raise a right to relief
above the speculative level[.] . . . [A complaint must state] enough facts to
state a claim to relief that is plausible on its face.”).
Plaintiff’s response brief does not address Defendant’s legal
arguments. Instead, it is a winding narrative spanning many years of
alleged mistreatment at the hands of Defendant. See generally (Docket #19).
Defendant urges the Court to disregard Plaintiff’s factual recitations in her
brief, and it is correct to do so. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d
1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss. . . .
[C]onsideration of a motion to dismiss is limited to the pleadings.”). Based
on the allegations of the amended complaint itself, the Court is obliged to
grant Defendant’s motion and dismiss Plaintiff’s pleading.
Defendant’s submissions suggest that the Court’s dismissal should
be with prejudice and without granting Plaintiff leave to amend. The Court
disagrees that this is the appropriate course. The Seventh Circuit has
strongly emphasized that leave to amend should be given after a first
motion to dismiss is granted. Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. & N.W. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015). This is particularly
important when dealing with a pro se litigant. The Court will, therefore, give
Plaintiff one final opportunity to present a viable complaint. As the Court
previously instructed Plaintiff, an amended complaint supersedes the prior
complaint and must be complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133
F.3d 1054, 1056–57 (7th Cir. 1998).

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The Court offers further advice to Plaintiff regarding a second
amended complaint, should she choose to file one. A complaint in the form
of her response brief would not be ideal. Rather than telling a story in a
narrative style, Plaintiff should state short, direct factual propositions about
who allegedly violated her rights, how they did it, and when. For her
assistance, the Court will send Plaintiff another copy of this District’s
complaint form for pro se litigants. Plaintiff must file her second amended
complaint by August 2, 2018. If she does not, this action will be dismissed
with prejudice. The Court preemptively warns Plaintiff that it will not
consider any requests to extend this deadline.
Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss (Docket #11)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s first amended complaint
(Docket #4) be and the same is hereby DISMISSED; and
IT IS FURTHER ORDERED that Plaintiff shall file a second
amended complaint in accordance with the terms of this Order on or before
August 2, 2018.
Dated at Milwaukee, Wisconsin, this 12th day of July, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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