Andrews et al v. Daeil USA Copr. et alBRIEF/MEMORANDUM in Support re MOTION to Dismiss Amended ComplaintM.D. Ala.October 31, 2016IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION STEVEN ANDREWS, et al., Plaintiffs, v. DAEIL USA CORPORATION, et al., Defendants. * * * * * CASE NO. 3:16-cv-00582-TFM DEFENDANT DAEIL USA CORPORATION’S MEMORANDUM BRIEF IN SUPPORT OF ITS MOTION TO DISMISS AMENDED COMPLAINT COMES NOW Daeil USA Corporation, a Defendant in the above-captioned matter, and in support of its Motion to Dismiss, submits this Memorandum Brief. I. INTRODUCTION On July 18, 2016, seven named Plaintiffs brought an eight-count Complaint against three separate Defendants. (Doc. 1.) In response, both Daeil and Mando filed Motions to Dismiss pointing out the glaring deficiencies in Plaintiffs' Complaint. (Docs. 7, 11.) Instead of responding directly to the Defendants' Motions to Dismiss, Plaintiffs filed an Amended Complaint on the twenty-first day after the service of the Motions to Dismiss. (Doc. 16.) Plaintiffs' Amended Complaint added three Plaintiffs and various causes of action in an apparent attempt to cure the deficiencies of Plaintiffs' initial Complaint; however, the Amended Complaint fails to do so, as it is just as much of a disarrayed hodgepodge of allegations as Plaintiffs' initial Complaint. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 1 of 22 2 {B2339636} Specifically, in the Amended Complaint, the Plaintiffs (without much delineation as to which Plaintiffs bring what claims against which Defendants) purport to allege the following causes of actions: (1) National Origin and Racial Discrimination under Title VII and Section 1981; (2) Retaliation under Alabama Code Section 25-5-11.1; (3) Retaliation under Title VII and Section 1981; (4) Disparate Impact; (5) Negligent Hiring, Training, Supervision, and Retention; (6) Assault and Battery; (7) FMLA Retaliation; and (8) Joint and Severable Liability1. The allegations in the Amended Complaint are conclusory, repetitive, confusing, and deficient - a shotgun pleading at its worst. The Amended Complaint is due to be dismissed in its entirety because it fails to comply with the pleading requirements dictated by the Federal Rules of Civil Procedure. In addition, Plaintiffs' Title VII claims (Counts 1, 3, and 4) are due to be dismissed because Plaintiffs have not exhausted their administrative remedies. Similarly, some of Plaintiffs' Section 1981 claims are barred by the relevant statute of limitations. Finally, Counts Four, Five and Six fail to state a claim against Daeil upon which relief could be granted and are, therefore, due to be dismissed as well. The Federal Rules of Civil Procedure and courts across the country have developed and enforced pleading standards for a reason - to avoid unnecessary burdens on the parties and court alike. Because this Amended Complaint fails to meet those basis standards, it should be dismissed. 1 Joint and several liability is not a separate cause of action but is, instead, a theory of liability. Plaintiffs' including this as a separate cause of action is just another example of the shotgun and deficient nature of the Amended Complaint. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 2 of 22 3 {B2339636} II. STANDARD OF REVIEW To survive a Rule 12(b)(6) 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, 556 U.S. 662, 678 (2009) (citation omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Moreover, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted). Rather, courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). In addition, a dispositive point of law may provide a basis for the dismissal of a complaint. Marshall County Bd. of Educ. v. Marshall Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). III. ARGUMENT A. Plaintiffs’ Shotgun Complaint Is Due To Be Dismissed As It Fails To Comply With The Federal Rules Of Civil Procedure. Plaintiffs' 455-paragraph, 8-count Amended Complaint is the quintessential shotgun pleading that implicates various Federal Rules of Civil Procedure, including Rules 8 and 10. See Chandler v. Volunteers of America Southeast, No. CV-12-S-3701- NW, 2013 WL 4058078, at * 2 (N.D. Ala. Aug. 12, 2013). Each of Plaintiffs’ eight counts incorporates all previous paragraphs on behalf of ten named Plaintiffs against three separate Defendants. Such convoluted, confusing allegations cannot be said to contain a “short and plain statement of the claim showing the pleader is entitled to relief,” Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 3 of 22 4 {B2339636} FED. R. CIV. P. 8(b), or to be “limited as far as practicable to a single set of circumstances” FED. R. CIV. P. 10(b). See Chandler, 2013 WL 4058078 at *2-3. (“[T]he complaint impermissibly fails to distinguish the actions of defendant Volunteers of North Alabama from those of defendant Volunteers Southeast. . . Instead, the complaint either lumps the defendants together as apparently synonymous entities, or makes allegations in the ambiguous passive voice . . .”) (internal citations omitted). Because this shotgun pleading does not satisfy the required pleading standards, it is due to be dismissed. The typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusion. Consequently, in ruling on the sufficiency of a claim, the trial court must sift out the irrelevancies, a task that can be quite onerous. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). For these and other reasons, the Eleventh Circuit has frequently condemned such pleadings as inexorably broadening discovery; lessening the time and resources of the court; wreaking havoc on appellate courts; undermining the public’s respect for the courts; undermining the court’s ability to process business efficiently, economically, and fairly; and undercutting the purpose of Title VII. Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 981-84 (11th Cir. 2008), abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Because the shotgun complaint at issue here groups all Plaintiffs, Defendants, and allegations together without distinct delineation of who claims what against whom and under what statute, Defendants and the court are left without a clear understanding of Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 4 of 22 5 {B2339636} what claims are truly at issue and what defenses may be available. Further, in most instances, the Amended Complaint does not specify what adverse employment actions are at issue, making it impossible for Defendants to properly investigate, address, and defend each claim. For example, it is not possible to tell from the Amended Complaint what employment decisions each Plaintiff is challenging (i.e., promotion, termination, pay, etc.). The pleading rules demand that degree of clarity at a minimum. Notably, Plaintiffs' repeated copying and pasting of groups of allegations for separate individuals under the cause of action headings does nothing to cure this deficiency but instead further confuses the issues. Simply put, attempting to conduct discovery on such claims would be unduly burdensome on all parties. See Davis, 516 F.3d at 982 (quoting Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001))(“Litigating a case framed by shotgun pleadings obviously harms one or both of the parties.”) For all these reasons, Plaintiffs’ Complaint fails to comply with the Federal Rules of Civil Procedure and is due to be dismissed in its entirety. Should this Court find that Plaintiffs' shotgun pleading is not due to be dismissed in its entirety, Defendant Daeil respectfully requests that the Court order Plaintiffs to file a more definite statement which is coherent and satisfies the established pleading standards. Depending on which, if any, Plaintiffs and claims survive this motion, Defendants anticipate asking the Court to sever the Plaintiffs/claims into separate cases or at least for purposes of trial. It is, therefore, essential for the parties and the Court to know what employment decisions and practices are at issue. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 5 of 22 6 {B2339636} B. Plaintiffs’ Title VII Claims Are Due To Be Dismissed Because Plaintiffs Have Not Exhausted Their Administrative Remedies. Each of the Plaintiffs’ Title VII claims (Counts One, Three, and Four) fails to state a claim upon which relief can be granted, as Plaintiffs have not plausibly alleged that they have exhausted their administrative remedies. The law is well-settled that an employee must timely pursue and exhaust her administrative remedies as a precondition to filing an employment discrimination suit under Title VII . . . . [A] plaintiff who does not plausibly allege that she successfully exhausted administrative remedies cannot state a claim under Title VII . . . and her claims would therefore be subject to dismissal pursuant to Rule 12(b)(6). Harris v. Bd. of Trustees Univ. of Ala., 846 F. Supp. 2d 1223, 1236-37 (N.D. Ala. 2012) (internal citations omitted). Before instituting a Title VII action in federal court, a private plaintiff must file an EEOC complaint against the discriminating party within 180 days of the alleged discrimination and receive statutory notice of the right to sue the respondent named in the charge. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Moreover, according to Federal Rule of Civil Procedure 9(c), a plaintiff must generally allege that all conditions precedent have occurred or have been performed. In the Amended Complaint, Plaintiffs generally allege that the Citizens Advocates Foundation for Justice filed a Third-Party Charge of Discrimination on behalf of unidentified African American employees of Defendant Daeil on or about April 7, 2014. (Doc. 16 ¶ 24.) The Amended Complaint includes no details as to the alleged discriminatory actions or time periods covered by this charge or whether it was in any way related to the Plaintiffs’ individual claims. In addition, the Amended Complaint alleges that Plaintiffs Carlisle, Edwards, Moore, and Drake filed EEOC Charges. (Doc. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 6 of 22 7 {B2339636} 16 ¶ ¶ 89, 99, 121, 151.) Otherwise, there is no mention of other individual Plaintiffs filing Charges against Daeil, and more tellingly, there is absolutely no allegation related to any Plaintiff’s receipt of a Right to Sue letter from the EEOC. Plaintiffs amended the Complaint to allege, "Plaintiffs have notified the EEOC of this lawsuit and have requested the prompt issuance of the Commission's findings." (Doc. 16 ¶ 9.) Nevertheless, Plaintiffs do not allege they have received the requisite statutory notice of the right to sue. In fact, Daeil has recently received additional requests for information from the EEOC regarding these Charges and counsel for Daeil has been informed by the EEOC that no requests for right to sue notices have been received, making it clear that the Plaintiffs have not exhausted their administrative remedies. Accordingly, because Plaintiffs have failed to exhaust their administrative remedies and failed to comply with Rule 9(c), all of Plaintiffs' claims brought under Title VII-namely Counts One, Three, and Four-are due to be dismissed. C. Certain Plaintiffs’ Claims Are Due To Be Dismissed Because They Are Barred By Either The Relevant Statute Of Limitations Or A Plaintiff’s Failure to Exhaust Administrative Remedies. As discussed above, in order to bring a Title VII claim, a plaintiff must first exhaust his administrative remedies by filing a charge with the EEOC within 180 days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). Although there are no administrative exhaustion requirements to bring a claim under Section 1981, such claims must be filed within the relevant statute of limitations period, which in Alabama, can be either two years or four years, depending on the conduct at issue. See Hithon v. Tyson Foods, Inc., 144 F. App’x 795, 799 (11th Cir. 2005); Barclay v. First Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 7 of 22 8 {B2339636} Nat’l Bank of Talladega, ___ F. Supp. 3d. ___, No. 1:14-cv-01573, 2016 WL 1270519, at *5-6 (N.D. Ala. Mar. 31, 2016). For instance, if a Section 1981 claim is based on an alleged failure to promote to a position that would have created a “new and distinct relation” with an employer, the statute of limitations is two years. Barclay, 2016 WL 1270519, at *6-7. Notably, “[i]n assessing whether a promotion creates a ‘new and distinct relation’ with the employer, courts consider a number of factors, including pay, duties, responsibilities, status as hourly or salaried employee, method of calculating salary, required qualifications, daily duties, potential liability and other benefits.” Id. at 6 (internal quotations and citations omitted). As discussed above, all of Plaintiffs’ Title VII claims are due to be dismissed for the failure to exhaust administrative remedies. However, to more specifically address such failures and because many of the Plaintiffs’ individual claims are also barred by the relevant statute of limitations period, the Plaintiffs’ Title VII and Section 1981 claims are addressed individually below. 1. Stephen Andrews Plaintiff Andrews alleges that he was not considered for promotions between March and June 2013; that he was terminated on June 2, 2014; that as of June 2015, Asian employees made more money than he did; and that he was not considered for positions between January through March 2016. (Doc. 16 ¶¶ 79-82, 191.) Plaintiff Andrews does not allege that he filed an EEOC Charge alleging discrimination based on any of these events. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 8 of 22 9 {B2339636} First, to the extent Plaintiff Andrews attempts to rely on the Third Party Charge filed on April 20, 2014, such reliance does not save his claims. He claims he was not considered for promotions between March and June 2013, which is well over 180 days prior to April 20, 2014, when the Third Party Charge was filed. Likewise, his other claims regarding his termination, pay disparity, and failure to be considered for positions in 2016, all occurred after the Third Party Charge. Again, Plaintiff Andrews does not allege that he filed an individual Charge or received a Right to Sue from the EEOC. Accordingly, Plaintiff Andrew’s claims are due to be dismissed for his failure to exhaust his administrative remedies under Title VII. See Harris, 846 F. Supp. 2d at 1236-37. Second, Plaintiff Andrew’s promotion claims related to the positions of inspector or team leader, which would have created a “new and distinct relation” with Defendant Daeil, are time-barred under Section 1981, as the lawsuit was filed more than two years after the alleged failure to promote. See Barclay, 2016 WL 1270519, at *6-7. 2. Jeremy Barnes Plaintiff Barnes alleges that he was never considered for an inspector position and that Koreans made more money per hour than he did. (Doc. 16 ¶¶ 83-87.) Plaintiff Barnes does not allege that he filed an EEOC Charge alleging discrimination based on any of these events. First, to the extent Plaintiff Barnes attempts to rely on the Third Party Charge filed on April 20, 2014, such reliance does not save his claims if any of the alleged promotion decisions occurred more than 180 days prior to April 20, 2014 or after the Charge was filed. Again, Plaintiff Barnes does not allege that he filed an individual Charge or Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 9 of 22 10 {B2339636} received a Right to Sue from the EEOC. Accordingly, Plaintiff Barnes's claims are due to be dismissed for his failure to exhaust his administrative remedies under Title VII. See Harris, 846 F. Supp. 2d at 1236-37. Second, to the extent Plaintiff Barnes's promotion claims relate to "inspector positions," which would have created a “new and distinct relation” with Defendant Daeil, that were filled prior to October 17, 2014, those claims are time-barred under Section 1981, as the lawsuit was filed more than two years after the alleged failure to promote. See Barclay, 2016 WL 1270519, at *6-7. 3. Keisha Carlisle Plaintiff Carlisle alleges that she filed an EEOC Charge; however, in the Complaint she alleges multiple alleged discriminatory acts that took place after the date she filed her charge, including the cancellation of her insurance and the termination of her employment. (Doc. 1 ¶¶ 88-97; 312-41.) First, as discussed in Section B above, to the extent Plaintiff Carlisle failed to exhaust her administrative remedies by not receiving a Right to Sue notice from the EEOC before filing the lawsuit, all of her Title VII claims are due to be dismissed. Likewise, any of her claims based on alleged discriminatory actions after August 14, 2015 are barred as Plaintiff Carlisle does not allege she filed an EEOC charge or received a Right to Sue notice related to those actions. As such, Plaintiff Carlisle’s Title VII claims are due to be dismissed for failing to exhaust her administrative remedies. See Harris, 846 F. Supp. 2d at 1236-37. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 10 of 22 11 {B2339636} 4. Cordie Drake Plaintiff Drake alleges that he was not considered for promotions to the positions of quality supervisor and quality assistant manager in November 2013, December 2013, and August 2014; that he was terminated in August 2014; and that he was not considered for an open position in March 2015. (Doc. 16 ¶¶ 98-108; 199-208.) Plaintiff Drake alleges that he filed an individual EEOC Charge, but he does not allege that he received any Right to Sue notices from the EEOC. First, to the extent Plaintiff Drake attempts to rely on the Third Party Charge allegedly filed on May 15, 2014, such reliance does not save his claims, as his termination and alleged failure to be considered in March 2015 occurred after the charge. Further, Plaintiff Drake's individual charge, which was filed on or around June 26, 2015, was filed more than 180 days after the alleged promotion decisions and termination; therefore, he has not exhausted his administrative remedies regarding these claims. Finally, because Plaintiff Drake does not allege he received a Right to Sue notice based on this conduct, his Title VII claims based on these allegations are due be dismissed. See Harris, 846 F. Supp. 2d at 1236-37. Second, Plaintiff Drake’s promotion claims related to managerial positions are time-barred under Section 1981, as the lawsuit was filed more than two years after the alleged failure to promote. See Barclay, 2016 WL 1270519, at *6-7. 5. Jeffrey Dowdell Plaintiff Dowdell alleges that he "would have applied for a managerial position" and that Korean workers made more money per hour than he did. (Doc. 16 ¶¶ 109-12.) Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 11 of 22 12 {B2339636} Plaintiff Dowdell does not allege for what positions he would have applied or when these alleged positions were open. Plaintiff Dowdell does not allege that he filed an EEOC Charge alleging discrimination based on any of these events. First, to the extent Plaintiff Dowdell attempts to rely on the Third Party Charge filed on April 20, 2014, such reliance does not save his claims if any of the alleged promotion decisions occurred more than 180 days prior to April 20, 2014 or after the Charge was filed. Again, Plaintiff Dowdell does not allege that he filed an individual Charge or received a Right to Sue from the EEOC. Accordingly, Plaintiff Dowdell's claims are due to be dismissed for his failure to exhaust his administrative remedies under Title VII. See Harris, 846 F. Supp. 2d at 1236-37. Second, to the extent Plaintiff Dowdell's promotion claims related to "management positions," which would have created a “new and distinct relation” with Defendant Daeil, were filled prior to October 17, 2014, those claims are time-barred under Section 1981, as the lawsuit was filed more than two years after the alleged failure to promote. See Barclay, 2016 WL 1270519, at *6-7. 6. Denise Edwards Plaintiff Edwards alleges that she filed an EEOC Charge on June 30, 2015; that she was placed on administrative leave on August 13, 2015; that she made less than her counterparts; and that she was terminated on June 1, 2016. (Doc. 16 ¶¶ 113-24; 209-12.) Because Plaintiff does not allege that she filed a Charge or received a Right to Sue notice based on her administrative leave or termination within 180 days of such conduct, any Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 12 of 22 13 {B2339636} Title VII claim based on these events is to be dismissed for her failure to exhaust administrative remedies. See Harris, 846 F. Supp. 2d at 1236-37. 7. Kelly Fanning Plaintiff Fanning alleges that he was passed over for various promotions but provides no dates of such promotions. (Doc. 16 ¶ 126.) He also alleges that he was required to take drug tests in August/December 2014; was terminated in December 2014; and terminated again in March 2016. (Doc. 16 ¶¶ 126-40; 213-29.) Because Plaintiff does not allege that he filed an EEOC Charge or received a Right to Sue notice related to any of this conduct, his Title VII claims based on these incidents are due to be dismissed. See Harris, 846 F. Supp. 2d at 1236-37. Likewise, if any of the promotion decisions Plaintiff Fanning complains of occurred prior to July 18, 2014, Plaintiff Fanning is barred from bringing a Section 1981 claim based on such decisions. See Hithon, 144 F. App’x at 799. 8. Rodney Harris Plaintiff Harris alleges he applied for employment but was not hired in April 2013, February 2014, August 2014, February 2015, and March 2015. (Doc. 16 ¶¶141-49.) Plaintiff Harris does not allege that he filed an EEOC Charge or received a Right to Sue on any of his claims. Accordingly, Plaintiff Harris’s Title VII claims are due to be dismissed for failure to exhaust administrative remedies. See Harris, 846 F. Supp. 2d at 1236-37. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 13 of 22 14 {B2339636} Second, to the extent Plaintiff Harris attempts to bring a claim under Section 1981 for failure to hire in April 2014, February 2014, and August 2014, such claims are barred by the relevant two-year statute of limitation. See Hithon, 144 F. App’x at 799. 9. Valerie Moore Plaintiff Moore alleges that she was terminated on April 27, 2015 (Doc. 16 ¶ 154); however, she does not allege that she ever filed an EEOC Charge or received a Right to Sue notice related to her termination. Accordingly, Plaintiff Moore failed to exhaust her administrative remedies and her Title VII claims based on such conduct are barred. See Harris, 846 F. Supp. 2d at 1236-37. 10. Larry Pulliam Plaintiff Pulliam alleges that Koreans make more money per hour than he does and that he "would have applied for management positions" if they had been posted. (Doc. 16 ¶¶ 159-62.) Plaintiff Pulliam does not allege for what positions he would have applied or when these positions were allegedly open. Plaintiff Pulliam does not allege that he filed an EEOC Charge alleging discrimination based on any of these events. First, to the extent Plaintiff Pulliam attempts to rely on the Third Party Charge filed on April 20, 2014, such reliance does not save his claims if any of the alleged promotion decisions occurred more than 180 days prior to April 20, 2014 or after the Charge was filed. Again, Plaintiff Pulliam does not allege that he filed an individual Charge or received a Right to Sue from the EEOC. Accordingly, Plaintiff Pulliam's claims are due to be dismissed for his failure to exhaust his administrative remedies under Title VII. See Harris, 846 F. Supp. 2d at 1236-37. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 14 of 22 15 {B2339636} Second, to the extent Plaintiff Pulliam's promotion claims relate to "management positions," which would have created a “new and distinct relation” with Defendant Daeil, that were filled prior to October 17, 2014, those claims are time-barred under Section 1981, as the lawsuit was filed more than two years after the alleged failure to promote. See Barclay, 2016 WL 1270519, at *6-7. D. Count Four Fails To State A Valid Claim For Disparate Impact. “Disparate impact occurs when an employer bases an employment selection decision on a criterion that is neutral on its face but disfavors black employees in operation.” Walker v. Jefferson County Home, 726 F.2d 1554, 1557 (11th Cir. 1984). See also E.E.O.C v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (“[D]isparate impact theory prohibits neutral employment practices which, while non-discriminatory on their face, visit an adverse, disproportionate impact on a statutorily-protected group.”) (emphasis in original). The disparate impact framework under Title VII is well-settled in the Eleventh Circuit. To establish a prima facie case of disparate impact discrimination, a plaintiff must demonstrate: “(1) significant statistical disparity among members of different racial groups; (2) a specific facially-neutral employment policy or practice; and (3) a causal nexus between that specific policy or practice and the statistical disparity.” Turner v. City of Auburn, 361 F. App’x 62, 65 (11th Cir. 2010) (emphasis added). In other words, “a plaintiff must do more than simply identify a workforce imbalance to establish a prima facie disparate impact case; it must causally connect a facially-neutral employment practice to the identified disparity.” Joe’s Stone Crab, 220 F. 3d at 1276. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 15 of 22 16 {B2339636} Here, Plaintiffs’ disparate impact claim in Count Four of the Amended Complaint, (Doc. 16 ¶¶ 240-282), fails to state a claim upon which relief can be granted under the well-settled law of the Eleventh Circuit. Specifically, nowhere in the forty-two paragraphs dedicated to this claim do the Plaintiffs identify, mention, or even allude to an alleged facially neutral policy or practice of Daeil’s that created a significant statistical disparity among members of different racial groups. In support of Count Four, Plaintiffs generally allege that Koreans were offered subsidized housing, while African Americans were not; were compensated at a higher rate than African Americans; and were chosen for management positions over qualified African Americans. (Doc. 16 ¶¶ 240-282.) Plaintiffs specifically allege that Daeil had a “policy of hiring from an agency which only supplied Asian/Korean workers.” (Doc. 16 ¶ 280.) Even if taken as true, not a single one of these allegations supports a disparate impact claim, as none of them point to a facially neutral policy. Instead, these allegations either reference a perceived workforce imbalance or conduct that, if true, would support (at most) a disparate treatment claim - not a disparate impact claim. As such, Count Four fails to state a claim upon which relief can be granted under Title VII’s disparate impact theory and it is due to be dismissed for this reason as well. E. Count Six Fails To State A Valid Claim For Assault And Battery Against Daeil. “The plaintiff in an action alleging assault and battery must prove ‘(1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or offensive manner.’” Walker v. City of Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 16 of 22 17 {B2339636} Huntsville, 62 So. 3d 474, 494 (Ala. 2010) (citation omitted). For an employer to be held liable for an intentional tort committed by its employee, such as assault and battery, the plaintiff must show "[1] the agent's wrongful acts were in the line and scope of his employment; or [2] that the acts were in furtherance of the business of [the employer]; or [3] that [the employer] participated in, authorized, or ratified the wrongful acts.'" Ex parte Lincare Inc., __So. 3d __, No. 1141373, 2016 WL 4417275, at *6 (Ala. Aug. 19, 2016) (quoting Potts v. BE & K Construction Co., 604 So. 2d 398, 400 (Ala. 1992)) (other citations omitted). The Alabama Supreme Court has explained that “[t]he conduct of the employee ... must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment.” Doe v. Swift, 570 So. 2d 1209, 1211 (Ala. 1990) (citation omitted). Otherwise, a Plaintiff may only prevail if the employer ratified its employee's conduct, which requires a showing that the employer "(1) had actual knowledge of the tortious conduct of the offending employee and that the tortious conduct was directed at and visited upon the complaining employee; (2) that based upon this knowledge, the employer knew, or should have known, that such conduct constituted . . . [a] tort; and (3) that the employer failed to take 'adequate' steps to remedy the situation." Potts, 604 So. 2d at 400. Count Six is premised entirely on one incident in which a Daeil employee, Sung Kim, allegedly pushed the arm of Plaintiff Keisha Carlisle and yelled demeaning comments after he became "agitated" and "irate" with her (in addition to allegedly tossing over, and thus possibly damaging, company furniture). (See Doc. 16 at ¶¶ 423-25). Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 17 of 22 18 {B2339636} Accepting her factual allegations as true, Plaintiff Carlisle's allegations at best establish that Kim's actions were impelled by his own feelings or resentment towards her. See Portera v. Winn Dixie of Montgomery, Inc., 996 F. Supp. 1418, 1437 (M.D. Ala. 1998) (citing Doe v. Swift, 570 So. 2d at 1211) (recognizing that "the Alabama Supreme Court [has] held that assault and battery by an employee is purely personal and outside the line and scope of his employment."). Accordingly, Plaintiff Carlisle can only hold Daeil vicariously liable for Kim's actions if it ratified his alleged conduct. Notably absent from Plaintiff's Amended Complaint, however, are any factual allegations that could establish how Daeil learned of this alleged incident. For instance, there are no allegations that Plaintiff Carlisle complained to anyone at Daeil about the incident. Instead, Plaintiff avers only conclusory legal allegations this Court is not required to accept as true. See (Doc. 16 at ¶ 421) ("Defendants Daeil/Mando as Kim’s employer, had notice of the action and failed to take proper disciplinary or corrective action."); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (holding that pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations). Thus, Plaintiff's Amended Complaint fails plead facts that could plausibly establish that Daeil knew of the alleged incident, much less that it knew such conduct constituted a tort or that it failed to take adequate steps to remedy the situation. See Potts, 604 So. 2d at 398. Accordingly, Count Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 18 of 22 19 {B2339636} Six fails to state a claim against Daeil upon which relief can be granted and is due to be dismissed. F. Count Five Is Due To Be Dismissed For Failure To Allege Underlying Conduct On Which It Could Be Based. Under Alabama law, “[a] party alleging negligent or wanton hiring, supervision, training, and retention must prove the underlying wrongful conduct of employees.” Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So. 3d 1185, 1196 (Ala. 2008). Moreover, the underlying wrongful conduct must constitute “‘a common-law Alabama tort’ committed by the employee, not [] a federal cause of action.” Ellis v. Advanced Tech. Servs., 2010 WL 3526169, at *2 (M.D. Ala. Sept. 3, 2010) (quoting Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002)). Accordingly, the federal district courts of this state routinely dismiss negligent training, supervision, and retention claims that are not based on a valid, independent state law tort. See, e.g., Guy v. Alabama Power Co., 2013 WL 3929858, at *2 (M.D. Ala. July 29, 2013) (recognizing that "[i]t is clear that the employee’s wrongdoing must be based on state, and not federal, law. Otherwise, the tort of negligent or wanton hiring, training, and supervision could be a corridor through which federal laws prohibiting various types of conduct by employees could be incorporated into state law as a privately redressable requirement on employers to stop their employees from engaging in such conduct.”). As such, Plaintiffs' claims for retaliation and discrimination arising under federal law cannot serve as the underlying tortious conduct on which Count Five is based. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 19 of 22 20 {B2339636} Therefore, the only possible tort that could serve as a predicate is Count Six2 - Plaintiff Carlisle's claim for assault and battery. Indeed, Count Five merely rehashes all of the Plaintiffs' allegations of discrimination and retaliation as set forth elsewhere throughout the Complaint. (See Doc. 16 at ¶¶ 283-417). Accordingly, the only Plaintiff who may even possibly attempt to assert a claim for negligent hiring, training, supervision, and retention is Plaintiff Carlisle. As outlined above, however, Plaintiff Carlisle has failed to sufficiently allege a plausible claim of assault and battery against Daeil. Because Plaintiffs have failed to allege a valid underlying common law tort on which their claim for negligent hiring, training, supervision, and retention could be based, Count Five is due to be dismissed as a matter of law. See Smith v. Boyd Bros. Transp., Inc., 406 F.Supp.2d 1238, 1248 (M.D. Ala. 2005) (“Under Alabama law, the finding of underlying tortious conduct is a precondition to invoking successfully liability for the negligent or wanton training and supervision of an employee.”). IV. CONCLUSION WHEREFORE, PREMISES CONSIDERED, Defendant Daeil USA Corporation respectfully requests this Honorable Court dismiss Plaintiffs’ claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, to the extent any claims survive 2 As a prime example of the problem with the shotgun pleading routinely condemned by the Eleventh Circuit, it is entirely unclear from a reading of the Complaint as to what underlying conduct on which Count Five purports to be based. See Doc. 16 at ¶¶ 283-417. Thus, Daeil and this Court are left to guess at the predicate for Plaintiffs' negligent hiring, training, supervision, and retention claim (including which Plaintiffs are even included in this count). However, Daeil notes that the crux of Count Five appears to be based on Plaintiffs' federal law discrimination and retaliation claims. See id. at ¶ 293 ("Plaintiffs' working conditions created by Defendants were adversely intolerable, and brought on by Defendants' intentional discrimination and retaliation.”). Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 20 of 22 21 {B2339636} this Motion, Defendant Daeil respectfully requests that the Court order the Plaintiffs to file a more definite statement that complies with the established pleading standards. Respectfully submitted, s/Breanna H. Young Arnold W. Umbach III (ASB-1932-M66A) M. Warren Butler (ASB-3190-R56M) Alfred H. Perkins, Jr. (ASB-3979-R68A) Breanna H. Young (ASB-9133-A52H) Chris E. Vinson (ASB-8404-K45K) STARNES DAVIS FLORIE LLP P. O. Box 598512 ` 100 Brookwood Place, Seventh Floor Birmingham, Alabama 35259-8512 tumbach@starneslaw.com wbutler@starneslaw.com aperkins@starneslaw.com byoung@starneslaw.com cvinson@starneslaw.com (205) 868-6000 - Phone Attorneys for Defendant Daeil USA Corp. Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 21 of 22 22 {B2339636} CERTIFICATE OF SERVICE I hereby certify that on October 31, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Valerie Powe, Esq. VALERIE HICKS POWE - ATTORNEY AT LAW 3900 Montclair Road, Unit 130637 Birmingham, AL 35213 205-965-1900 - Phone vhp@valeriehickspowe.com Ingu Hwang, Esq. Michael L. Lucas, Esq. BURR & FORMAN, LLP 420 North 20th Street, Suite 3400 Birmingham, AL 35203 205-251-3000 - Phone 205-244-5673 - Fax ihwang@burr.com mlucas@burr.com and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: None. s/Breanna H. Young Breanna H. Young Case 3:16-cv-00582-TFM Document 22 Filed 10/31/16 Page 22 of 22
