Opinion
Case No. 8:01-CV-0069-T-27 MSS
October 17, 2002
ORDER
THIS CAUSE came to be considered on Plaintiffs' Substituted Motion for Leave to Amend Complaint (Dkt. 28), Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Leave to File Second Amended Complaint (Dkt. 32), and Plaintiffs' Reply Brief (Dkt. 34).
I. Introduction
On January 11, 2001, Plaintiffs M. Perez and McKenna filed a Complaint against Defendant Pavex Corporation, alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981 and the Florida Civil Rights Act. (Dkt. 1). Plaintiff M. Perez alleged that he was terminated and subjected to harassment because he is Hispanic. Id. Plaintiff McKenna alleged that she was harassed and selected for lay-off because of her relationship with M. Perez. Id.
On March 8, 2001, Plaintiffs Perez and McKenna amended the Complaint to add twenty-five additional Plaintiffs. (Dkt. 5). The additional claims were brought under 42 U.S.C. § 1981 and involve widely varying factual and legal issues.
Three Plaintiffs are former employees asserting claims based on their Hispanic race. Twelve Plaintiffs are former employees asserting claims based on their race, African American. Five Plaintiffs are former white employees. Seven Hispanic non-employee Plaintiffs claim to work for trucking companies which delivered materials to Defendant's job sites.
Plaintiffs now seek leave to make the following three categories of amendments: (1) revisions to conform the First Amended Complaint to the facts ascertained through discovery; (2) language perfecting legal claims asserted in the First Amended Complaint; and (3) additional state law claims for intentional infliction of emotional distress; negligent hiring, supervision and retention; intentional interference with an advantageous business relationship; assault; and battery. (Dkt. 28, p. 4).
II. Applicable Standard
Defendant contends that because Plaintiffs seek leave to amend after entry of the Case Management and Scheduling Order, the appropriate standard is the "good cause" standard articulated under Fed.R.Civ.P. 16(b), rather than the standard for amendments under Fed.R.Civ.P. 15(a). (Dkt. 32, 4). The Eleventh Circuit has held that motions for leave to amend filed after the deadline set forth in the district court's scheduling order are held to Rule 16(b)'s "good cause standard" and should be denied unless the schedule mandated in the scheduling order cannot "be met despite the diligence of the party seeking the extension." See Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).
Here, the Case Management and Scheduling Order provides that "[m]otions to amend any pleading . . . after the issuance of this Case Management and Scheduling Order are disfavored." (Dkt. 10) (emphasis added). It does not set forth a deadline per se. Accordingly, the amendment standard articulated in Rule 15(a) governs Plaintiff's request for leave to amend.
Under Rule 15(a), leave to amend "shall be freely given when justice so requires." The Supreme Court has emphasized that "this mandate is to be heeded." Foman v. Davis, 371 U.S. 178 (1962). In Foman, the Supreme Court indicated that a court should deny leave to amend a pleading only when: (1) the amendment would be prejudicial to the opposing party, (2) there has been bad faith or undue delay on the part of the moving party, or (3) the amendment would be futile. Id. at 182.
III. Discussion
Defendant has not objected to Plaintiffs' motion for leave to conform the First Amended Complaint or perfect the legal claims already asserted. (Dkt. 32). Accordingly, Plaintiffs' request for leave to so amend is granted. The only remaining issue before the Court is whether leave should be granted to add Plaintiffs' additional state law claims.
Plaintiffs seek to add state tort claims of (1) intentional infliction of emotional distress; (2) negligent hiring, supervision and retention; (3) intentional interference with an advantageous business relationship; (4) battery; and (5) assault. (Dkt. 28). Defendant opposes Plaintiffs' request for leave on the grounds that (1) Plaintiffs' state tort claims were brought after undue delay and will cause undue prejudice to Defendant and (2) Plaintiffs' state tort claims are futile.
A. Undue Delay/Prejudice
Defendant argues that Plaintiffs should not be permitted to add their state tort claims because Defendant will be required to re-depose numerous Plaintiffs "to determine whether they are alleging a claim for intentional infliction of emotional distress or negligent hiring, retention and supervision, as well as the specific facts which they contend support that claim." (Dkt. 32, p. 6). Defendant claims it has not been afforded the opportunity to depose the Plaintiffs on their claims for intentional interference with advantageous business relationships, assault, and battery because Plaintiffs delayed in bringing these claims and failed to provide Defendant with timely notice of their intention to amend. Id.
Defendant concedes that Plaintiff McKenna intended to plead a Florida Civil Rights Act claim in the initial Complaint. (Dkt. 32, n. 2).
Plaintiffs submitted a copy of the Proposed Second Amended Complaint, annotated to show additions and deletions to Defendant via overnight mail on February 11, 2002. (Dkt. 28, p. 2). Plaintiffs contend that Defendant's counsel represented that they would review the Proposed Second Amended Complaint and identify those amendments which they consented to and those they intended to dispute. Id. On February 14, 2002, Plaintiffs filed a Motion for Leave to Amend Plaintiff N. Perez's claims for assault, battery and intentional infliction of emotional distress to prevent the potential running of the statute of limitations. (Dkt. 26). On March 4, 2002, after Defendant's counsel notified Plaintiffs that they would not engage in a detailed review of the Proposed Second Amended Complaint and would not consent to any of the proposed amendments, Plaintiffs filed a Substituted Motion for Leave to Amend seeking leave to add all of the claims asserted in the Proposed Second Amended Complaint. (Dkt. 28). Plaintiffs attached the Proposed Second Amended Complaint to their Substituted Motion. Id.
Defendant does not contest this assertion.
At the time Plaintiffs filed their Substituted Motion for Leave to Amend, the discovery cut off was May 29, 2002 and the dispositive motion deadline was August 13, 2002. (Dkt. 23). Given these circumstances, Defendant was on notice of Plaintiffs' intention to bring their additional state tort claims, including the claims for tortious interference with a business relationship and negligent hiring, supervision and retention, at least two months prior to the close of discovery and five months prior to the dispositive motion deadline, even though the motion remained pending. While the Court recognizes that all but one of the Plaintiffs had been deposed at that time, the Court concludes that a finding of undue delay or prejudice under these circumstances is not warranted. Under these circumstances, notwithstanding the discovery deadline, limited supplemental depositions may be taken if necessary.
On July 2002, at the parties' request, the Court extended the dispositive motion deadline to September 16, 2002. (Dkt. 43).
B. Futility
Defendant argues that Plaintiffs should not be permitted to add claims for intentional infliction of emotional distress, negligent hiring, supervision and retention, and tortious interference with a business relationship because these claims would be futile. (Dkt. 32). Denial of leave to amend is justified by futility when the "Complaint as amended is still subject to dismissal." Burger King Corp. v. C.R. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (citing Halliburton Assoc., Inc. v. Henderson. Few Co., 774 F.2d 441 444 (11th Cir. 1985). Leave to amend should be denied on the ground of futility when the proposed amendment is clearly insufficient or frivolous on its face. Taylor v. Florida State Fair Authority, 875 F. Supp. 812, 815 (M.D. Fla. 1995) (citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (41h Cir. 1980)).
Defendant does not contend that the assault and battery claims are futile.
Intentional Infliction of Emotional Distress
All of the Plaintiffs seek leave to add claims for intentional infliction of emotional distress. (Proposed Amended Compl., ¶ 180). Defendant argues that the tort of intentional infliction of emotional distress is "virtually unrecognized under Florida law." (Dkt. 32, pgs. 7, 9). Defendant alternatively argues that Plaintiffs fail to allege conduct sufficiently outrageous to support such a claim. Id.
In order to state a cause of action for intentional infliction of emotional distress under Florida law, the plaintiff must plead the following elements: (1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) the complained of conduct must have caused the suffering; and (4) the suffering must have been severe. Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985). Conduct is considered "outrageous", when it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 278.
"[I]t is manifest that the subjective response of the person who is the target of the actor's conduct is not to control the question of whether the tort occurred. Rather, an evaluation of the claimed misconduct must be undertaken to determine as objectively as is possible, whether it is atrocious, and utterly intolerable in a civilized community." Ponton v. Carafone, 468 So.2d 1009, 1010 (Fla. 2d DCA 1985). Whether conduct is sufficiently outrageous to support a cause of action for intentional infliction of emotional distress is a question of law. Id. at 1009.
Florida and federal courts have resisted recognizing a cause of action for intentional infliction of emotional distress in an employment setting. See Vance v. Southern Bell Tel. Tel. Co., 983 F.2d 1573 (11th Cir. 1993) (no cause of action where employer hung a rope "noose" over plaintiff's workstation, forced plaintiff into physical altercation with white employee, sabotaged her work, transported her to wrong hospital after she suffered nervous breakdown, and constructively discharged her); Martin v. Baer, 928 F.2d 1067 (11th Cir. 1991); Miranda v. BB Cash Grocery Stores, Inc., 1990 WL 107559 (M.D. Fla. 1990); Pontone, 468 So.2d at 1011 (no cause of action where employer attempted to induce employee to join him in sexual liaison); Lay v. Roux Laboratories, Inc., 379 So.2d 451, 452 (Fla. 1st DCA 1980) (no cause of action when employer threatened plaintiff with termination, used humiliating language, made vicious verbal attacks and racial epithets towards plaintiff).
However, this history does not mean, as Defendant suggests, that such a claim is not cognizable in Florida courts. See Deshiro v. Branch, 1996 WL 663974, *4 (M.D. Fla. 1996) (citing Byrd v. Richardson-Greensheilds Securities, Inc., 552 So.2d 1099 (Fla. 1989)); see also Vernon v. Medical Management Assoc. of Margate, Inc., 1996 U.S. Dist. LEXIS 520, *26 (S.D. Fla. 1996) (motion to dismiss claim for intentional infliction of emotional distress in employment context denied); Urquiola v. Linen Supermarket Inc., 1995 WL 266582 (M.D. Fla. 1995) (employer's motion to dismiss denied where plaintiffs allegations went "`beyond mere harassment or verbal abuse,'" and evidenced a "relentless campaign of verbal and physical abuse").
Here, Plaintiffs allege that they were the subject of relentless verbal abuse, curses, ridicule, racial epithets and racial slurs, as well as threats of violence and physical abuse. Id. at 70. In determining whether Plaintiffs' claims are futile, the Court cannot conclude that Plaintiffs' allegations of repeated verbal abuse, threats of violence, and physical injury are insufficient as a matter of law. Accordingly, Plaintiffs' request to add claims of intentional infliction of emotional distress are granted.
Nearly all of the Plaintiffs allege that they suffered verbal abuse and racial slurs, such as "spic," "fucking Cuban," "Cuban thief," "niggers," "fucking niggers," and "stupid motherfucking Cuban." See e.g., Proposed Amended Compl., ¶¶ 19, 20, 30, 52, 55, 60, 68, 73, 79, 84, 89, 98, 101, 115, 122, 133, 143, 146, 151. Some Plaintiffs allege that they suffered abuse or hostility because of their relationships or associations with African American or Hispanic co-workers. See e.g. id. at ¶¶ 43 161, 165. Nonemployee Plaintiffs contend that on several occasions they were not allowed to complete their assigned deliveries. Id. at ¶¶ 123, 125, 129, 136, 140, 144. Nearly all Plaintiffs allege that they suffered numerous acts of discrimination, such as work reassignments, demeaning tasks, restrictions on use of office restroom, reduction in work hours, refusal to report accidents, and mandatory drug tests which were allegedly fixed to result in a positive showing of drugs, as well as other discriminatory acts. See e.g., id. at ¶¶ 16, 101, 103, 106, 119, 157, 162. Other Plantiffs allege threats of violence, physical abuse and injury. Plaintiff N. Perez alleges that he was beaten by the foreman until he was unconscious, suffering permanent scarring and nerve damage. Id. at 129. Plaintiff Abrams alleges that his supervisor "picked up the lute [latter], swung it at [him], a frail man of 62, and struck him in the back." Plaintiff Liuberes contends that during one of his deliveries the foreman picked up a shovel and threatened to hit him over the head. Id. at ¶ 146. This altercation allegedly caused Lluberes to suffer a stroke, resulting in permanent damage to his right eye. Id. at ¶ 147. Plaintiff Flournoy alleges supervisors threw their hats and tools at him to humiliate him. Id. at ¶ 52.
This is not an adjudication on the merits. To the extent Defendant contends that Plaintiffs' allegations are not sufficiently outrageous, this argument is more appropriately made in a dispositive motion.
Negligent Hiring, Supervision and Retention
All of the Plaintiffs seek leave to bring claims for negligent hiring, supervision and retention. (Proposed Amended Compl., ¶ 181). Defendant argues that Plaintiffs' claims are futile because (1) Plaintiffs fail to allege injury resulting from a tort recognized under common law; (2) Plaintiffs' claims fail to comply with Florida's "impact rule"; and (3) to the extent Plaintiffs suffered any injury, their claims of negligence are barred by Florida's Worker's Compensation law. (Dkt. 32, pgs. 10-13).
Under Florida law, negligent retention occurs when, during the course of employment, the employer becomes aware of or should have become aware of problems with an employee that indicated the employee's unfitness, and the employer fails to take action such as investigating, discharge, or reassignment. See Watson v. The City of Hialeah, 552 So.2d 1146, 1148 (Fla. 3d DCA 1989); Garcia v. Duffy, 492 So.2d 435, 439 (Fla. 2d DCA 1986). The underlying wrong committed by an employee must be based on an injury resulting from a tort which is recognized under common law. See Scelta v. Delicatessen Support Services, Inc., 57 F. Supp.2d 1327, 1348 (M.D. Fla. 1999) (citations omitted). In Florida, in order to recover damages for emotional distress in connection with a negligent hiring, supervision and retention claim, a plaintiff must demonstrate that the emotional stress suffered flowed from injuries sustained in an impact. Id.; see also R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995).
Here, Plaintiffs allege damages as a result of Defendant's failure to maintain a workplace free of "racial and ethnic discrimination, harassment and retaliation, assault, battery, intentional interference with advantageous relationships, and intentional infliction of emotional distress." (Proposed Amended Compl., ¶ 181). With the exception of Plaintiffs N. Perez and Abrams, none of the Plaintiffs allege any injury as a result of physical impact. Id. at ¶¶ 70, 129. For this reason, those Plaintiffs (other than N. Perez and Abrams) fail to meet the requirements of Florida's impact rule and their proposed claims for negligent hiring, supervision and retention would be subject to dismissal and the requested amendment would be futile. See Scelta v. Delicatessen Support Services. Inc., 57 F. Supp.2d 1327, 1348-49 (M.D. Fla. 1999); Degitz v. Southern Management Services, Inc., 996 F. Supp. 1451, 1461 (M.D. Fla. 1998); Goodstein v. Gunther Motor Co., 1996 WL 903950, *14 (S.D. Fla. 1996).
As Plaintiffs N. Perez and Abrams meet Florida's impact rule and allege injuries resulting from a tort recognized under common law (battery), their claims are legally sufficient. Further, N. Perez and Abrams's negligent retention claims are not barred by Florida's Workers' Compensation law. See Byrd v. Richardson-Greenshields Securities Inc., 552 So.2d 1099, 1104 (Fla. 1989). Accordingly, these proposed claims are not futile and Plaintiffs N. Perez and Abrams's request for leave to add negligent supervision and retention claims are granted.
Tortious Interference with an Advantageous Business Relationship
Non-employee Plaintiffs Abrahantes, Lluberes, Martinez, D. Perez, I. Perez, N. Perez, R. Perez and Vazquez-Falero seek leave to bring claims for tortious interference with an advantageous business relationship ("tortious interference claim"). (Proposed Amended Compl., ¶ 177). Under Florida law, the elements of a claim of tortious interference with a business relationship are: (1) the existence of a business relationship that affords the plaintiff existing or prospective legal fights; (2) defendant's knowledge of the business relationship; (3) defendant's intentional and unjustified interference with the relationship; and (4) damage to the plaintiff. International Sales and Service, Inc. v. Austral Insulated Products Inc., 262 F.3d 1152 (11th Cir. 2001) (citing Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla. 1994)). Defendant contends that Plaintiffs' claims are futile because they fail to allege a sufficient business relationship and because Plaintiffs did not suffer damage as a result of Defendant's alleged interference. (Dkt. 32, p. 14).
The Plaintiffs did not address Defendant's arguments regarding Plaintiffs' tortious interference claims in their Reply Brief. (Dkt. 34).
In order to succeed on a tortious interference claim, the "alleged business relationship must afford the plaintiff existing or prospective legal or contractual rights." Ethan Allen, 647 So.2d at 813 (citations omitted). A protected business relationship need not be evidenced by an enforceable contract. Id. at 814.
Here, all eight non-employee Plaintiffs allege that they were regularly assigned, via their contracts with certain trucking companies, to make deliveries to Defendant's work sites. (Proposed Amended Compl., ¶¶ 122, 124, 128, 132, 135, 139, 142, 145). Plaintiffs Abrahantes, N. Perez, Vazquez-Falero, Martinez, and R. Perez allege that their deliveries were intentionally interfered with by Defendant. Id. at ¶¶ 123, 125, 129, 133, 143. Plaintiffs Martinez, D. Perez, I. Perez, and R. Perez allege that they ceased working on Defendant's jobs, or were told that they would no longer be permitted to work on Defendant's work sites. Id. at ¶¶ 123, 138, 141, 144. In paragraph 177 of the Proposed Second Amended Complaint, these Plaintiffs allege that Defendant's interference caused them to suffer damage. Id. at 177. Based on these allegations, the Court cannot conclude that an amendment to add these Plaintiffs' claims for tortious interference would be futile.
Plaintiff Martinez alleges that after Defendant refused to allow him to make deliveries and "stated that he did not want plaintiff to return because he did not speak English, plaintiff ceased working on Pavex jobs." Id. at ¶ 123. Plaintiffs D. Perez, I. Perez, and R. Perez allege that "after the attack on Narciso Perez, defendant informed the proprietor of Manny's Transport that Plaintiff and other members of Perez' [sic] family would no longer be permitted to make deliveries to defendant." Id. at ¶¶ 123, 138, 141, 144.
However, in contrast to the seven non-employee Plaintiffs named above, Plaintiff Lluberes fails to allege any interference by Defendant. Id. at ¶ 145-48. Unlike the other seven nonemployee Plaintiffs, Plaintiff Lluberes simply fails to allege any facts in support of a tortious interference claim. Accordingly, Plaintiff Lluberes's request for leave to amend to add a tortious interference claim is denied. Plaintiffs Abrahantes, Martinez, D. Perez, I. Perez, N. Perez, R. Perez and Vazquez-Falero's request for leave to so amend is granted.
Lluberes alleges that he was "subject to racial harassment by Terry Overcash . . . on several occasions when he made deliveries to defendant's job sites." Id. at 146. He also alleges that he was threatened with a shovel which resulted in a stroke and that nothing was done to correct the situation despite his complaints to management. Id. at 146-48.
Accordingly, it is ORDERED and ADJUDGED that:
1. Plaintiffs' Motion to for Leave to Amend to conform the First Amended Complaint to the facts ascertained through discovery is GRANTED.
2. Plaintiffs' Motion for Leave to Amend to perfect the legal claims asserted in the First Amended Complaint is GRANTED.
3. Plaintiffs' Motion for Leave to add claims for intentional infliction of emotional distress is GRANTED.
4. Plaintiffs' N. Perez and Abrams's Motion for Leave to add claims for negligent hiring, supervision and retention is GRANTED.
5. Plaintiffs Abrahantes, Martinez, D. Perez, I. Perez, N. Perez, R. Perez and Vazque-Falero's Motion for Leave to add claims for tortious interference with advantageous business relationships is GRANTED.
6. Plaintiffs are directed to file a Second Amended Complaint in accordance with this Court's ruling within fifteen (15) days of the date of this Order.