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Giner v. AllStars Insurance Partners, Inc.

United States District Court, S.D. Florida, Miami Division

November 19, 2019

ELIZABETH GINER, Plaintiff,
v.
ALLSTARS INSURANCE PARTNERS, INC. d/b/a ESTRELLA INSURANCE, and GUDELIO FUNDORA, Defendants.

          ORDER GRANTING MOTION TO DISMISS AND REMANDING CASE TO THE CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

          FEDERICO A. MORENO JUDGE

         THIS CAUSE came before the Court upon Defendants' Motion to Dismiss the Amended Complaint. The Court has considered the motion, the response in opposition, the reply, the pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the motion to dismiss is GRANTED with respect to Plaintiffs Title VII claim, and the case REMANDED to the Circuit Court for the Eleventh Judicial Circuit of Florida. As explained below, Plaintiff failed to plead or demonstrate that Defendants ever received notice of the filing of the initial complaint, such that the relation back doctrine applies to her claim.

         I. BACKGROUND

         On November 1, 2016, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission complaining that her employer "made unwelcome sexual advances" to her in the workplace.[1] The commission then sent a Notice of Charge of Discrimination, dated May 15, 2018, to Defendant AllStars Insurance Partners, Inc. After review, the commission mailed a Dismissal and Notice of Rights, dated August 8, 2018, to Plaintiff and her counsel, as well as Defendants' counsel, concluding "[AllStars Insurance Partners, Inc.] employs less than the required No. of employees or is not otherwise covered by the statutes." This right to sue letter noted that any claims arising under Title VII had to be filed "WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost."

         On November 6, 2018, ninety days later, Plaintiff filed a two-count complaint, based on the same underlying conduct by her employer, in the Eleventh Judicial Circuit of Florida (case No. 2018-37632-CA-01), alleging (1) violations of Chapter 11-A of Code of Miami-Dade County (sexual harassment and retaliation) and (2) assault and battery. There is no evidence in the state docket, nor does Plaintiff attest, that Defendants were served with a copy of the complaint and summons.[2] On May 16, 2019, a little more than six months after filing the initial complaint, Plaintiff filed an amended complaint in the same state court alleging: (1) violations of the Florida Civil Rights Act (sexual harassment and retaliation), (2) violations of Title VII (sexual harassment and retaliation), (3) assault and battery, and (4) false imprisonment. This time around, Plaintiff furnished the Defendants with service of process, and Defendants timely removed the case.

         After removing the case, Defendants filed a motion to dismiss, arguing that, first, the Title VII claim should be barred as untimely. Defendants note that under Title VII, a plaintiff must file his or her complaint within ninety days of receiving the right to sue letter. Here, the Plaintiff only made its Title VII claim for the first time 281 days from receiving the right to sue letter. Defendants then argue that, in any event, the Title VII claim fails on the merits as Defendants do not qualify as a "covered employer" under the statute, and further, that the complaint as a whole should be dismissed for being an impermissible shotgun pleading.[3] In rebuttal, Plaintiff contends that the amended complaint relates back to the initial complaint and is therefore timely, that the Title VII claim does not fail on the merits, and that the complaint is not a shotgun pleading as it sufficiently notifies the Defendants of the critical facts underlying each claim.

         The Court now evaluates the motion to dismiss, the response in opposition, and the reply.

         II. STANDARD OF REVIEW

         In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). When ruling on a motion to dismiss, a court must view the complaint in a light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. Twombly, 550 U.S. at 555-56. In order to establish a facially plausible claim, a plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Plaintiff need not provide "detailed factual allegations," but the "obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

         III. ANALYSIS

         The Court must decide whether the amended complaint filed in state court sufficiently "relates back" to the initial complaint such that Plaintiffs Title VII claim for sexual discrimination is not time-barred by the applicable statute of limitations. Pursuant to federal law, a plaintiff must file a Title VII claim within ninety days of receiving a right to sue letter from the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5(f)(1). The ninety-day window is a statute of limitations. Weldon v. Elec. Data Sys. Data Corp., 138 Fed.Appx. 136, 138 (11th Cir. 2005). The statute of limitations, in turn, is an affirmative defense, and '"dismissal on such grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred' and 'only if it appears beyond a doubt that [a plaintiff] can prove no set of facts that toll the statute."' Sec'y of Labor v. Labbe, 319 Fed.Appx. 761, 764 (11th Cir. 2008) (alterations in original) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n.13 (11th Cir. 2005)). Should the defendant demonstrate beyond a doubt that the claim is time-barred, adherence to the ninety-day filing rule is strict. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (explaining that "[i]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." (alteration in original) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).

         There is no dispute that Plaintiff filed the initial complaint within ninety days of receiving the right to sue letter. But, there is a dispute over whether the amended complaint, filed 281 days after Plaintiff received the right to sue letter, and which asserts a Title VII claim for the first time, relates back to the initial complaint such that the Title VII claim is timely. In order to relate back, an amended complaint must "assert[] a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed.R.Civ.P. 15(c)(1)(B). Juxtaposing the initial complaint with the amended complaint, it appears that the Title VII claim arises out of the same underlying conduct or occurrence alleged in the initial complaint. The claim, viewed in a light most favorable to the Plaintiff, is based on the same "unwelcome/unwanted sexual advances, propositions, comments" taking place "during the course and scope of employment" that form the bases of Plaintiff s claims in the initial complaint.[4]

         Although not explicitly required in Rule 15(c)(1)(B), courts also inquire into whether the opposing party has been put on notice of the newly-asserted claim or claims raised in the amended pleading. The central purpose behind the relation back doctrine is fair notice of the possibility of new claims being asserted based on the same underlying conduct alleged in the initial complaint. "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings 'give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Baldwin, 466 U.S. at 149 n.3 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). As such, "[t]he critical issue in Rule 15(c) determinations," the Eleventh Circuit wrote, "is whether the original complaint gave notice to the defendant of the claim now being asserted." Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citing Woods Expl. & Producing Co., Inc. v. Aluminum Co. of Am., 438 F.2d 1286, 1299-1300 (5th Cir. 1971)). Importantly, the circuit court in Moore specifically required notice in the Rule 15(c)(1)(B) context-the same context in which Plaintiff now seeks to invoke the relation back doctrine to add her Title VII claim. Id. However, the court did not define the kind of notice necessary to satisfy the relation back doctrine. Id.

         Other courts in this district and throughout the country, like in Moore, require notice in the Rule 15(c)(1)(B) context, but do not define, or only vaguely define, that kind of notice. See, e.g., Ferretti v. NCL (Bahamas) Ltd., No. 17-cv-20202, 2018 WL 3093547, at *3 (S.D. Fla. June 22, 2018) (explaining notice is necessary for relation back and citing Moore); Spillman v. Carter, 918 F.Supp. 336, 340 (D. Kan. 1996) ("The purpose of Rule 15(c)(2) is accomplished if the original complaint gives the defendant fair notice that litigation is arising out of a specific factual situation." (internal quotation marks omitted)); Wilburn v. Dial Corp.,724 F.Supp. 530, 535 (W.D. Term. 1989) ("[W]hen a plaintiff files two complaints which arise out of the same facts or transaction, and the defendant has notice of the plaintiffs allegations within the proscribed statutory time period, a subsequent complaint may relate back under Rule 15 to the prior one, preventing a time bar of the second complaint."); Molokwu v. City of N.Y., No. 98Civ.5202(JSM), 2000 WL 1056314, at *1 (S.D.N.Y. Aug. 1, 2000) ("Here, as in Wilburn, Plaintiffs original complaint and his Second Amended Complaint arise out of the same facts and the original complaint provided the defendants with notice of the substance of his allegations ...


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