Bailey v. Urology Center of Columbus LLC et al, No. 4:2011cv00042 - Document 17 (M.D. Ga. 2011)
Court Description: ORDER granting 5 Motion to Dismiss Complaint as to all claims against Defendant Harper; granting 6 Defendant UCC's Partial Motion to Dismiss Complaint as to Counts II, IV, VI, VII, and VIII against Defendant UCC; granting 14 Plaintiff's Motion to Dismiss Complaint without prejudice as to Counts I, III, and V against Defendant UCC. Defendant UCC's counterclaim remains pending. Ordered by Judge Clay D. Land on 08/15/2011. (CGC)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION KERRI MICHELLE BAILEY, * Plaintiff, * vs. * CASE NO. 4:11-CV-42 (CDL) UROLOGY CENTER OF COLUMBUS, LLC * and DR. WILLIAM M. HARPER, IV, * Defendants. * O R D E R After dismiss Defendant all of William Plaintiff Harper, Kerri IV Michelle ( Harper ) Bailey‘s sought to ( Bailey ) claims against him because they failed to state a claim upon which relief may be granted (ECF No. 5) and after Defendant Urology Center of Columbus, LLC ( UCC ) sought dismissal of five of the eight counts of Bailey‘s Complaint against it for failure to state a claim (ECF No. 6), Bailey filed a motion to dismiss her entire Complaint without prejudice (ECF No. 14). The Court finds to that Bailey‘s Complaint against Harper fails state claims upon which relief may be granted, and therefore, Bailey‘s Complaint against Harper is dismissed with prejudice in its entirety. The Court also finds that Counts II, IV, VI, VII, and VIII of Bailey‘s Complaint against UCC fail to state claims upon which relief may be granted, and therefore, those counts against UCC are dismissed with prejudice. The remaining counts against UCC (Counts I, III, and V) are dismissed pursuant to Bailey‘s motion to dismiss. without prejudice The Court declines to impose conditions on the voluntary dismissal of Counts I, III, and V. UCC‘s Counterclaim remains pending. FACTUAL ALLEGATIONS AND BACKGROUND I. Bailey’s Complaint Bailey brought an eight count Complaint against Harper and Bailey‘s former employer, UCC. Count I alleges that UCC failed to pay Bailey overtime wages, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Compl. ¶¶ 12-15, ECF No. 1-2. Notice of Removal Ex. A, Count II alleges that Bailey regularly worked in excess of 80 hours every week but was never compensated for more than 40 hours of work. Id. ¶¶ 16-18. Count III alleges that UCC breached its agreement to pay Bailey a severance package after UCC terminated Bailey. Count IV alleges fraudulently Bailey‘s that represented job was UCC‘s to safe, Bailey that employee, in Heather December Bailey Id. ¶¶ 19-24. of relied Tharpe, 2009 that on that representation and purchased a house, that at the time of the representation UCC had already made plans to terminate Bailey, and that Bailey was later terminated from her job in March of 2010. pay Id. ¶¶ 11, 20, 25-33. Bailey the reasonable Count V alleges that UCC did not value of her performed in excess of 40 hours per week. 2 services for Id. ¶¶ 34-37. work Count VI alleges condoning employees that UCC negligently improper and that supervised relationships Harper‘s between improper its employees Harper and with relationships UCC the other UCC employees created a hostile work environment. ¶¶ 38-42. Bailey appears to contend that by Harper‘s Id. alleged inappropriate relationship with an employee named Heather Tharpe resulted in Bailey‘s termination, id. ¶ 41, and that UCC and Harper are attributable thus to legally [Bailey‘s] responsible wrongful for the termination, damages id. ¶ 42. Count VII alleges that UCC negligently retained Heather Tharpe and that UCC‘s failure to terminate Tharpe resulted in Bailey‘s termination. regarding how Id. ¶¶ 43-48. Tharpe or Bailey does not allege any facts Harper‘s Tharpe caused Bailey‘s termination. alleged relationship with In fact, Bailey does not allege any facts about her termination, except that it occurred on either March 21, 2010, id. ¶ 11, or March 25, 2010, id. ¶ 20. In Count VIII of her Complaint, Bailey seeks punitive damages based on Count IV, Count VI, and Count VII. II. Id. ¶¶ 49-52. UCC’s Counterclaim UCC filed a counterclaim, alleging that Bailey breached her confidentiality agreement with UCC, Answer & Countercl. 21-23 ¶¶ 16-24, ECF No. 4, violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, id. at 23-28 ¶¶ 25-42, and violated the Georgia 3 Computer Systems Protection Act, O.C.G.A. § 16-9-90 et seq., id. at 28-32 ¶¶ 43-54. III. Defendants’ Motions to Dismiss On April 27, 2011, Harper filed a Motion to Dismiss all claims against him (ECF No. 5), and UCC filed a Partial Motion to Dismiss Counts II, Complaint (ECF No. 6). IV, VI, VII, and VIII of Bailey‘s Bailey did not respond to either Motion to Dismiss. IV. Bailey’s Motion for Voluntary Dismissal On June 7, 2011—two weeks after her responses to the Motions to Dismiss were due—Bailey filed a Motion for Voluntary Dismissal Without Prejudice so that she can fully evaluate the case in light of . . . new information, and so that she can determine which claims, if any, are meritorious and should be pursued. 2 ¶ 8, Pl.‘s Mot. for Voluntary Dismissal Without Prejudice ECF No. 14. Defendants oppose Voluntary Dismissal Without Prejudice. Bailey‘s Motion for Bailey did not describe in her motion what new information she obtained, but she all but admitted in her reply brief that she did not adequately investigate her claims before filing her Complaint: Bailey stated in her reply brief that she has learned that an employee of Urology Center of Columbus other than Defendant Harper may be directly responsible for the harm that she suffered. Pl.‘s Resp. to Defs.‘ Objection to Pl.‘s Mot. for Voluntary Dismissal 4 Without Prejudice 2, ECF No. 16. caused Plaintiff to reassess This new information has some of contained in the original complaint. the legal theories Id. DISCUSSION I. Bailey’s Rule 41(a) Motion to Dismiss Under Federal Rule of Civil Procedure 41(a), a plaintiff may voluntarily dismiss a complaint under certain circumstances. Where, as here, the opposing party has served an answer and has not agreed to the dismissal, an action may be dismissed at the plaintiff‘s request only by court order, on terms that the court considers proper. has pleaded a Fed. R. Civ. P. 41(a)(2). counterclaim before being If a defendant served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Id. A Rule 41(a)(2) dismissal may be either with or without prejudice. ( Unless the order states otherwise, a dismissal See id. under this paragraph (2) is without prejudice. ). Given Defendants‘ objection to Bailey‘s dismissal request, the first question for the Court is whether UCC‘s counterclaim can remain pending for independent adjudication. Court finds that it can. UCC‘s Counterclaim Id. contains The one federal law claim under the Computer Fraud and Abuse Act, 18 5 U.S.C. § 1030, and the Court may exercise supplemental jurisdiction over UCC‘s two state law claims. The next question is whether the dismissal should be with or without prejudice. UCC did not move to dismiss Counts I (Fair Labor Standards Act), III (breach of contract), and V (quantum meruit). Those claims are therefore dismissed as to UCC without prejudice. The Court declines to impose conditions on the voluntary dismissal of Counts I, III, and V. Defendants ask that the remaining claims be dismissed with prejudice: all claims against Harper and Counts II (recovery of unpaid wages), IV (fraudulent misrepresentation), VI (negligent supervision), VII (negligent damages) against UCC. retention), and VIII (punitive Rather than determining whether Bailey‘s motion to dismiss these claims should be granted with or without prejudice, the Court finds it appropriate to rule on Defendants‘ motions to dismiss these claims with prejudice. If these counts of Bailey‘s Complaint do not state claims upon which relief may be granted and thus Defendants‘ motions should be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) as to these claims, then Bailey should not be allowed to escape dismissal of those claims with prejudice simply because she now seeks to dismiss them without prejudice. 6 II. Defendants’ Rule 12(b)(6) Motions to Dismiss A. Rule 12(b)(6) Motion to Dismiss Standard When considering a 12(b)(6) motion to dismiss, the Court must accept complaint as and true limit all facts its consideration exhibits attached thereto. set forth to in the the plaintiff=s pleadings and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.‘ Ashcroft v. Iqbal, 129 (quoting Twombly, 550 U.S. at 570). S. Ct. 1937, 1949 (2009) The complaint must include sufficient factual allegations to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. [A] formulaic recitation of the elements of a cause of action will not do[.] Id. Although the complaint must contain factual allegations that raise a reasonable expectation that discovery will reveal evidence of the plaintiff=s claims, id. at 556, Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because it strikes a savvy judge that actual proof of those facts is improbable,‘ Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556). 7 B. Count I – Fair Labor Standards Act Claim In Count I, Bailey alleges that UCC violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ( FLSA ), by failing to pay Bailey overtime wages. against Harper. employer 29 Bailey does not allege that Harper was her within U.S.C. § Count I contains no FLSA allegations the meaning of the FLSA. See 207(a)(2) (stating that an employer must pay overtime pay for time worked in excess of forty hours per week). She only alleges that UCC was her employer. Compl. ¶ 4. For these reasons, Count I fails to state an FLSA claim against Harper, and Count I is dismissed with prejudice as to Harper. UCC did not seek dismissal of Bailey‘s FLSA claim. As discussed above, Count I as to UCC is dismissed without prejudice. C. Count II – Recovery of Unpaid Wages In Count II, Bailey alleges that she regularly worked in excess of 80 hours every week but was never compensated for more than 40 hours of work. Compl. ¶¶ 17-18. no specific allegations against Harper. UCC, not Harper, was her employer. Count II contains Bailey alleges that Compl. ¶ 4. Bailey does not allege that Harper had a duty to pay her wages. For all of these reasons, Count II fails to state a claim against Harper, and Count II is dismissed with prejudice as to Harper. As it is drafted, Count II is duplicative of Bailey‘s FLSA claim, and Bailey sets forth no separate legal basis for her 8 Recovery of Unpaid Wages Claim. The Court concludes that the allegations of Count II are subsumed into Bailey‘s FLSA claim against UCC. to UCC. Count II is therefore dismissed with prejudice as This dismissal is not intended to bar a non-FLSA Recovery of Unpaid Wages claim that is based on separate, valid authority. Bailey‘s Complaint does not, however, state such a claim. D. Count III – Breach of Contract Count III alleges that UCC breached its agreement to pay Bailey a severance package after UCC terminated Bailey. Bailey alleges that UCC offered Bailey a severance package, that Bailey accepted the package, and that UCC refused to pay. Compl. ¶ 21. Since Bailey does not allege that she had contract with Harper, Count III fails to state a breach of contract claim against Harper. Harper. Therefore, Count III is dismissed with prejudice as to UCC did Contract claim. not seek dismissal of Bailey‘s Breach of As discussed above, Count III as to UCC is dismissed without prejudice. E. Count IV – Fraudulent Misrepresentation Count IV alleges that UCC‘s employee, Heather Tharpe, made a fraudulent misrepresentation to Bailey regarding the security of her job. Bailey does not allege that Harper made a fraudulent misrepresentation to her, and she does not allege any other facts that would support a fraudulent misrepresentation 9 claim against Harper. Accordingly, Count IV is dismissed with prejudice as to Harper. With regard to UCC, Bailey‘s claims are similar to the claims of the plaintiff in Kirkland v. Pioneer Machinery, Inc., 243 Ga. App. 694, 534 S.E.2d. 435 (2000). In Kirkland, the plaintiff planned to buy a house and asked his supervisor, How am I doing?‘ because he did not want the financial obligation of a house if he were going to be fired from his job. 534 S.E.2d at 436. Id. at 695, The supervisor did not tell the plaintiff that his job was in jeopardy, but the plaintiff was fired three weeks later. Id. The Georgia Court of Appeals found that even if the supervisor kept silent in spite of his knowledge that [the plaintiff] was going to be fired, the plaintiff still had no claim because the promise on which the plaintiff allegedly relied was unenforceable because the plaintiff was an at-will employee. Id., 534 S.E.2d at 436-37 (citing Ely v. Stratoflex, 132 Ga. App. 569, 571-72, 208 S.E.2d 583 (1974)). Under Georgia law, If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party. O.C.G.A. § 34-7-1 (emphasis added). Bailey does not allege in her Complaint that she had an employment contract with UCC for a 10 specified time period. In the absence of such an allegation, there the are no facts in Complaint that would, if proved, establish that Tharpe‘s alleged promise was enforceable. For these reasons, the Court concludes that Count IV fails to state a fraudulent misrepresentation claim against UCC, and Count IV therefore is dismissed with prejudice as to UCC. F. Count V – Quantum Meruit In Count V, Bailey alleges that she rendered work, labor, and services to UCC, at the request and on behalf of UCC, for which UCC is obligated to pay [Bailey] the reasonable value of her services. allegations Compl. against ¶ 35. Harper. Count Bailey V contains alleges no that specific UCC, not Harper, was obligated to pay her the reasonable value of her services. Id. Bailey does not allege that Harper was obligated to pay her wages. For all of these reasons, Count V fails to state a claim against Harper, and Count V is dismissed with prejudice as to Harper. quantum meruit claim. UCC did not seek dismissal of Bailey‘s As discussed above, Count V as to UCC is dismissed without prejudice. G. Count VI – Negligent Supervision Count VI alleges that UCC at all times had a non-delegable duty . . . to exercise a high degree of care and supervision of the workplace and that UCC failed in that duty. Compl. ¶ 39. Bailey does not allege that Harper had or breached any duty to 11 supervise; rather, Harper is one of the individuals whom Bailey contends was not adequately supervised. Id. ¶ 40 (alleging that UCC condoned Harper‘s continuing improper relationships with other UCC employees). For all of these reasons, Count VI fails to state a claim against Harper, and Count VI is dismissed with prejudice as to Harper. With regard to Bailey‘s negligent supervision claim against UCC, Bailey must establish that (1) UCC‘s employee caused an injury to her, and (2) UCC knew or reasonably should have known of the employee‘s tendencies to engage in the behavior that caused her injuries. E.g., Leo v. Waffle House, Inc., 298 Ga. App. 838, 841, 681 S.E.2d 258, 262 (2009). Bailey alleges that UCC knew that Harper and Tharpe engage[d] in improper personal and sexual relationships within the workplace. Compl. ¶ 39(a). What Bailey does not allege is how Harper‘s alleged relationship with Tharpe caused Bailey any injury. alleges that Harper and Tharpe‘s First, Bailey summarily alleged relationship encouraged discriminatory promotion and pay practices within the UCC workplace, id. ¶ 39(b), but there are no allegations of what the discriminatory promotion and pay practices were or how they applied to Bailey. Second, Bailey summarily alleges that Harper and Tharpe‘s alleged relationship created a hostile work environment, id. ¶ 40, and that UCC retaliated against persons who complained about a hostile work environment, id. ¶¶ 39(c), 12 39(e). Bailey does not, however, allege any facts regarding how Harper and Tharpe‘s alleged relationship created a hostile work environment, to whom the alleged hostile work environment was directed, whether the alleged hostile work environment was unlawful because it was based on a protected trait, or whether Harper and Tharpe‘s conduct materially altered the terms and conditions of any employee‘s employment. Finally, Bailey summarily alleges that UCC and Harper are legally responsible for the damages attributable to Plaintiff‘s wrongful termination, id. ¶ 42, but Bailey alleges no facts regarding her termination except when it happened and that Bailey contends it was wrongful. There are no specific allegations Bailey was terminated for an impermissible reason. there is nothing in the Complaint that raises that In summary, a reasonable expectation that discovery will reveal evidence that Harper and Tharpe‘s alleged actionable harm. relationship caused Bailey some sort of Accordingly, Bailey‘s negligent supervision claim against UCC is dismissed with prejudice. This dismissal is environment not intended to bar a valid hostile wrongful termination claim against UCC. work or This dismissal simply finds that Bailey‘s Complaint does not state such claims, and thus there can be no derivative negligent supervision claim. 13 H. Count VII – Negligent Retention In Count VII, Bailey alleges that UCC negligently retained Heather Tharpe and that UCC‘s resulted in Bailey‘s termination. failure not allege any specific Bailey‘s termination. facts to terminate Compl. ¶¶ 43-48. regarding how Tharpe Bailey does Tharpe caused Again, Bailey does not allege any facts about her termination, except that it occurred on either March 21, 2010, id. ¶ 11, or March 25, 2010, id. ¶ 20. Bailey does not allege that Harper had or breached any duty to discipline or fire Tharpe. She only alleges that UCC should have disciplined or fired Tharpe for her alleged inappropriate relationship with Harper. For these reasons, Count VII fails to state a claim against Harper, and Count VII is dismissed with prejudice as to Harper. To state a negligent retention claim against UCC, Bailey must establish that (1) UCC‘s employee caused an injury to her, and (2) UCC knew or reasonably should have known of the employee‘s tendencies to engage in the behavior that caused her injuries but retained the employee anyway. E.g., Dowdell v. Krystal Co., 291 Ga. App. 469, 472, 662 S.E.2d 150, 154 (2008). Bailey‘s negligent retention claim is based on UCC‘s failure to discipline or terminate Tharpe because Tharpe allegedly had an improper relationship with Harper. Bailey summarily alleges that UCC should have fired Tharpe to prevent harm and/or other 14 adverse personnel actions toward other employees, Compl. ¶ 44, and that Tharpe was in a position where she could adversely affect the employment relationship of other employees of UCC, id. ¶ 45. Bailey also summarily alleges that UCC‘s failure to terminate Tharpe resulted in Bailey‘s wrongful termination. Id. ¶ 46. But there are no specific allegations that Tharpe unlawfully caused harm to Bailey or that Tharpe unlawfully and adversely affected Bailey‘s employment relationship with UCC. Bailey makes no specific allegations that she was terminated for an impermissible reason. For these reasons, Bailey‘s negligent retention claim against UCC is dismissed with prejudice. As with the Court‘s ruling on Bailey‘s negligent supervision claim, this dismissal is not intended termination claim against UCC. Bailey‘s Complaint does not to bar a valid wrongful This dismissal simply finds that state such a claim, and thus a derivative negligent retention claim does not exist. I. In Count VIII – Punitive Damages Count VIII of her Complaint, Bailey seeks damages based on Count IV, Count VI, and Count VII. 52. in punitive Id. ¶¶ 49- Given that the Court has dismissed Counts IV, VI, and VII their entirety, Bailey‘s claim fails and is therefore dismissed. 15 for punitive damages also CONCLUSION For the reasons set forth above, Harper‘s Motion to Dismiss (ECF No. 5) is granted, and all of Bailey‘s claims against him are dismissed with prejudice. UCC‘s Partial Motion to Dismiss (ECF No. 6) is granted, and Counts II, IV, VI, VII, and VIII against UCC are dismissed with prejudice. Bailey‘s Motion for Voluntary Dismissal Without Prejudice (ECF No. 14) is granted as to Counts I, III, remaining counts. and V against UCC and denied as to the The Court declines to impose conditions on the voluntary dismissal of Counts I, III, and V. The only claims still standing are those asserted in UCC‘s Counterclaim which remains pending. IT IS SO ORDERED, this 15th day of August, 2011. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 16
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