Lewis v. Exec. Dining

CHARLES G. LEWIS, Plaintiff, v. EXECUTIVE DINING LLC, Defendant.

No. 4:20-cv-01261-SEP

United States District Court, E.D. Missouri, Eastern Division

August 27, 2021

MEMORANDUM AND ORDER

SARAH E. PITLYK UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Executive Dining LLC's Motion to Dismiss Plaintiff's Second Amended Complaint, which asks the Court to strike the Second Amended Complaint or, in the alternative, to dismiss it. Doc. [23]. The Motion is fully briefed. For the reasons set forth below, the Second Amended Complaint will not be stricken but will be dismissed.

Facts and Background Plaintiff Charles Lewis, proceeding pro se originally filed this action in state court on June 10, 2020. Doc. [3]. Defendant Executive Dining LLC removed the action on September 15, 2020.^[1] Lewis alleges that Watlow Electric Manufacturing Company terminated his employment in violation of Title VII of the Civil Rights Act of 1964 after an employee of Defendant Executive Dining had a heated verbal exchange with him. Doc. [21] at 4. Plaintiff originally brought this action against 18 Defendants, but all Defendants except Executive Dining were dismissed for failure to timely serve under Rule 4(m). See Docs. [28], [30], [31].

Executive Dining filed its first Motion to Dismiss, Doc. [9], on September 22, 2020, which the Court denied as moot in light of Plaintiff's later-filed amended complaints. See Doc [32]. Despite failing to request permission from the Court as required by Federal Rule of Civil Procedure 15, Plaintiff filed a Second Amended Complaint on January 29, 2021. Doc [21]. On February 12, 2021, Defendant filed a Motion to Dismiss Plaintiff's Second Amended Complaint, asking the Court to strike the Second Amended Complaint for failure to comply with Rule 15, or alternatively, to dismiss the action. Doc. [23].

The Second Amended Complaint is disorganized and partially illegible. As the “Cause of Action, ” Plaintiff asserts: “Defendants conspired and succeeded in discrediting the plaintiff by using multiple torts in a workplace environment. (Conspiracy, Retaliation, Negligence Violent Work Environment, Respondeat Superior, Scrutiny, Racial Discrimination, Gender Discrimination, Sex Discrimination, Wrongful Termination.)” Doc. [21] at 3. Plaintiff lists the parties and then separates the alleged facts by Defendant, attributing the following to Executive Dining:

Facts III Executive Dining

13. In November of 2017, I was verbally assaulted by Executive Dining LLC's employee Ryan (last name unknown).

14. This act was conducted under the supervision of Frank (last name unknown)

15. Executive Dining CEO Greg Genesh & HR Diane Cox along with Angel Farley and Jake Anderson condone this behavior and did nothing to remedy the issue.

Doc. [21] ¶¶ 13-15; see Doc. [25] at 5 (stating that facts related to Executive Dining “fall under ‘Facts III Executive Dining lines 13 thru 15.'”). It is not clear from the face of the Complaint which claims are brought against Executive Dining, but in his opposition to the Motion to Dismiss, Plaintiff states:

My Petition clearly lists each company and defendant to their respective tort(s) or allegations. This is why JACKSON LEWIS defendants^[2] fall under “Facts III Executive Dining” lines 13 thru 15. Even my “Claims for Relief” mention Executive Dining three times which are . . .

• C. Workplace Violence. Respondeat Superior

• F. State, Federal, and Company fiduciary duties

Doc. [25] at 5. Thus, the Court will evaluate Plaintiff's workplace violence, respondeat superior, and fiduciary duty claims against Executive Dining. While Plaintiff does not list Title VII and conspiracy in his “Claims for Relief, ” the Court will also evaluate those claims because the Complaint is ambiguous, and Defendant presents arguments to dismiss both.^[3]

Legal Standards

I. Motion to Strike

Federal Rule of Civil Procedure 15(a) provides that, if more than 21 days have passed since the service of a responsive pleading or a motion made under Rule 12(b), (e), of (f), “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” A court can refuse to grant leave to amend for a variety of reasons including “repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court has significant discretion in ruling on motions to strike. Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (“[I]t has always been understood that the district court enjoys liberal discretion.” (internal quotation marks and citation omitted)). But “striking a party's pleading is an extreme measure” and the Eighth Circuit has cautioned that Rule 12(f) motions to strike “are viewed with disfavor and are infrequently granted.” Id. (quoting Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1997)).

II. Motion to Dismiss

The court must liberally construe pro se complaints. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “Liberal construction” means that “if the essence of an allegation is discernible . . . then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Soloman v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, this does not mean that the procedural rules must be interpreted to excuses mistakes. Pro se plaintiffs “still must allege sufficient facts to support the claims advanced.” Stone, 364 F.3d at 914 (citing Cunningham v. Ray, 648 F.2d 1185, 1886 (8th Cir. 1981) (“[P]ro se litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law.”)); Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (“[The court] will not supply additional facts, nor will [it] construct a legal theory for a [pro se] plaintiff that assumes facts that have not been pleaded.”).

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, the Court assumes all of a complaint's factual allegations are true and construes all reasonable inferences in favor of the nonmoving party. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To survive a motion to dismiss, the complaint must allege facts supporting each element of the plaintiff's claims, and the claims cannot rest on mere speculation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Specifically, the complaint “must allege more than ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements'” and instead must “allege sufficient facts that, taken as true, ‘state a claim to relief that is plausible on its face.'” K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Iqbal, 556 U.S. at 678). The Court “need not accept as true plaintiff's conclusory allegations or legal conclusions drawn from the facts.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019). The issue in considering such a motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim. See Twombly, 550 U.S. at 556.

Discussion

I. Motion to Strike

Plaintiff filed his original Complaint on June 10, 2020, Doc. [3], and Defendants moved to dismiss it on September 22, 2020. Doc. [9]. Plaintiff then filed an Amended Complaint on January 22, 2021, Doc. [20], more than 21 days after the Defendant's filing of the Motion to Dismiss. Plaintiff failed to obtain consent from Defendant or permission from the Court as required by Rule 15(a). See Fed.R.Civ.P. 15(a). He filed a Second Amended Complaint seven days later, again failing to obtain the Defendant's consent or the Court's permission. Thus, both amended complaints were untimely filed. Plaintiff's Second Amended Complaint is not materially different from his previous complaints, ^[4] however. Thus, the Court finds Defendants will not be “undu[ly] prejudice[d]” if the Court permits the Second Amended Complaint to stand. Dennis, 207 F.3d at 525. Courts have “liberal discretion” in ruling on motions to strike, and the “drastic remedy” of striking pleadings is disfavored. Stanbury Law Firm, 221 F.3d at 1063 (quoting Moore's Federal Practice § 12.37[1] (3d ed. 2000)). Therefore, the Court will not strike the Second Amended Complaint and instead will address Defendant's Motion to Dismiss.

II. Motion to Dismiss

Executive Dining filed a Motion to Dismiss on February 12, 2021, arguing that each of Plaintiff's claims is subject to dismissal under Rule 12(b)(6). Dos. [23], [24]. In conjunction with his briefs in opposition to the Motion to Dismiss, see Docs. [25], [29], Plaintiff submitted two audio recordings of conversations with Watlow Manufacturing management and Defendant's HR representative, Diane Cox. See Doc. [26]. The Court must first decide whether consideration of the audio recordings is appropriate.

Rule 12(d) provides that, in ruling on a 12(b)(6) motion, a court generally cannot consider matters outside the pleadings, but it may consider...