Arnold v. The Fresh Market, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.June 14, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Rachel Arnold, ) ) Plaintiff, ) ) v. ) C/A No. 1:17-cv-02089-SCJ ) The Fresh Market, Inc., ) ) Defendant. ) ) DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT BECAUSE PLAINTIFF’S CLAIMS ARE TIME BARRED AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant, The Fresh Market, Inc. (“The Fresh Market”), respectfully moves the Court for an order dismissing Plaintiff, Rachel Arnold’s (“Plaintiff’s”), Complaint with prejudice in its entirety because Plaintiff’s claims are time barred and because Plaintiff has failed to allege facts sufficient to establish a claim against The Fresh Market. In support of this Motion, The Fresh Market relies on and incorporates herein its Memorandum of Law in Support of Its Motion to Dismiss Plaintiff’s Complaint Because Plaintiff’s Claims are Time Barred and For Failure to State a Claim Upon Which Relief Can Be Granted, filed contemporaneously herewith. As set forth in its supporting Memorandum of Law, The Fresh Market is entitled to Case 1:17-cv-02089-SCJ Document 3 Filed 06/14/17 Page 1 of 4 2 judgment as a matter of law dismissing Plaintiff’s Complaint in its entirety with prejudice, pursuant to Rule 12(b)(6), because based on the allegations in the Complaint, Plaintiff’s claims are barred by the applicable statute of limitations; and also because, even if Plaintiff’s claims were not time barred, Plaintiff has failed to allege facts sufficient to establish any of the essential elements of each of her causes of action, specifically including, but without limitation, injury and damages. WHEREFORE, The Fresh Market respectfully requests that the Court enter an Order dismissing Plaintiff’s Complaint in its entirety with prejudice. Respectfully submitted this 14 th day of June, 2017. /s/ Jeffrey J. Costolnick Jeffrey J. Costolnick Georgia Bar No. 637168 OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree Street, N.E., Suite 4800 Atlanta, Georgia 30303 Telephone: (404) 881-1300 Fax: (404) 870-1732 jeffrey.costolnick@ogletreedeakins.com Attorneys for The Fresh Market Case 1:17-cv-02089-SCJ Document 3 Filed 06/14/17 Page 2 of 4 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Rachel Arnold, ) ) Plaintiff, ) ) v. ) C/A No. 1:17-cv-02089-SCJ ) The Fresh Market, Inc., ) ) Defendant. ) ) CERTIFICATE OF SERVICE I hereby certify that on this 14 th day of June, 2017, I electronically filed the foregoing DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT BECAUSE PLAINTIFF’S CLAIMS ARE TIME BARRED AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED with the Clerk of Court using the CM/ECF system and also served the foregoing, via Federal Express and e-mail, to the following attorney of record: S. Quinn Johnson, Esq. Johnson PC, Attorneys at Law 1640 Powers Ferry Rd SE, Bldg. 19-300 Marietta, GA 30067 quinn.johnson@jcoip.com Case 1:17-cv-02089-SCJ Document 3 Filed 06/14/17 Page 3 of 4 4 /s/ Jeffrey J. Costolnick Jeffrey J. Costolnick Georgia Bar No. 637168 30120998.1 Case 1:17-cv-02089-SCJ Document 3 Filed 06/14/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Rachel Arnold, ) ) Plaintiff, ) ) v. ) C/A No. 1:17-cv-02089-SCJ ) The Fresh Market, Inc., ) ) Defendant. ) ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT BECAUSE PLAINTIFF’S CLAIMS ARE TIME BARRED AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED COMES NOW Defendant, The Fresh Market, Inc. (“The Fresh Market”), by counsel and pursuant to Federal Rule of Civil Procedure 12(b)(6), and respectfully submits the following Memorandum of Law in Support of its Motion to Dismiss Plaintiff’s Complaint Because Plaintiff’s Claims are Time Barred and for Failure to State a Claim Upon Which Relief Can be Granted, and shows as follows. I. PRELIMINARY STATEMENT On or about May 3, 2017, Plaintiff Rachel Arnold (“Plaintiff” or “Arnold”) filed a Complaint for damages in the State Court of Fulton County, Georgia (the “Complaint”), asserting claims of Negligence (Count I) and Negligent Supervision Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 1 of 18 2 of Employees-Violation of O.C.G.A. § 51-2-2 (Count II) against The Fresh Market, as well as a claim for Attorney’s Fees under O.C.G.A. § 13-6-11 (Count III). See, Complaint. Specifically, Plaintiff alleges that, as a condition of her employment, she was required to provide personal and confidential information to The Fresh Market, and that The Fresh Market breached its duty, as her employer, to protect that information. On June 7, 2017, The Fresh Market timely removed the Complaint to this Court. See, Defendant’s Notice of Removal, filed June 7, 2017. As set forth below, Plaintiff’s Complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because, based on the allegations in the Complaint, Plaintiff’s claims are barred by the applicable statute of limitations. Furthermore, even if Plaintiff’s claims were not time barred, Plaintiff has failed to allege facts sufficient to establish a claim against The Fresh Market. Specifically, Plaintiff’s negligence claims must fail as a matter of law because Plaintiff has not alleged a single fact suggesting that her personal information was disclosed or improperly accessed, nor has she alleged any fraudulent activity involving her personal information. As such, Plaintiff has not alleged any injury or damages resulting therefrom. II. RELEVANT FACTUAL BACKGROUND The Fresh Market is a specialty grocer that operates retail market locations across the United States, including Georgia. See, Complaint, at ¶ 2; see also, Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 2 of 18 3 Defendant’s Certificate Of Interested Persons And Corporate Disclosure Statement, filed June 8, 2017. On or about November 12, 2010, Plaintiff became employed by The Fresh Market in one of its Atlanta, Georgia facilities, and continued her employment until voluntarily resigning, in 2012. See, Complaint, ¶ 5. In the Complaint, Plaintiff alleges that, as part of her employment, she was required to provide The Fresh Market with personal information, including her full name, address, and social security number. Id., at ¶ 6. She alleges that The Fresh Market has a duty to safeguard such confidential information collected from employees. Id., at ¶ 7. Plaintiff further alleges that The Fresh Market also employed Maurice Martin, who had previously been arrested on the premises of The Fresh Market “for the willful and fraudulent use of the social security numbers of, then current, employees of The Fresh Market.” Id., at ¶¶ 8-9. Plaintiff alleges that following Martin’s arrest, The Fresh Market “knew or should have known of Martin’s propensity to engage in the conduct of willfully and fraudulently using the social security numbers of other employees,” but nevertheless retained Mr. Martin as an employee. Id., at ¶¶ 9-12. Finally, Plaintiff alleges that The Fresh Market failed to warn Plaintiff of the allegedly “known propensity for willful and fraudulent actions against other employees by employee Martin,” and “failed to properly supervise, train and monitor its employees to prevent the unauthorized access to personal Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 3 of 18 4 information disclosed to The Fresh Market for employment purposes.” Id., at ¶¶ 13-14. Importantly, Plaintiff’s Complaint contains no allegations of any fraudulent actions against Plaintiff (committed by Martin or anybody else); nor does the Complaint allege that Plaintiff’s personal information was ever disclosed, stolen, or used. See, Complaint. III. ARGUMENT AND CITATION OF AUTHORITIES A. The Rule 12(b)(6) Standard. A 12(b)(6) motion to dismiss challenges a complaint’s compliance with Fed. R. Civ. P. 8. Federal Rule 8(a)(2), which requires a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). As the Supreme Court amplified in Twombly and later Iqbal, although this pleading standard does not require “detailed factual allegations,” it “demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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.” Iqbal, 556 U.S. at 662. A claim is plausible on its face “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. A complaint must be supported by factual allegations sufficient to Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 4 of 18 5 “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Willingham v. Glob. Payments, Inc., 2013 WL 440702, at *9 (N.D. Ga. Feb. 5, 2013) (quoting Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007); see also, Patrick v. Verizon Directories Corp., 284 Ga. App. 123, 124, 643 S.E.2d 251, 252 (2007) (“a complaint must give a defendant notice of the claim in terms sufficiently clear to enable him to frame a responsive pleading thereto”). A complaint that offers nothing more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement” fails to meet this standard and should be dismissed. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is proper if the factual allegations are not “enough to raise a right to relief above the speculative level.” Rivell v. Private Health care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (quoting Twombly, 550 U.S. at 555). To determine whether a plaintiff has satisfied the pleading standard set forth in Rule 8(a)(2) and clarified in Twombly and Iqbal, a court must engage in a two- pronged analysis. First, a court must identify and disregard allegations that are nothing more than legal conclusions and as such, are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 5 of 18 6 at 678. After disregarding unsupported legal conclusions, a court must then identify the non-conclusory, well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement of relief.” Id. at 679. If the factual allegations, assumed to be true, are consistent with a claim for relief, that claim must nevertheless be dismissed if the facts are equally consistent with a finding of no liability. See, id. Applying this two-pronged inquiry, the Supreme Court in Iqbal granted the defendants’ motion to dismiss where the plaintiff’s allegation that defendants “‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy’” was exactly the type of conclusory allegation that a court should disregard when considering a motion to dismiss. Id. at 680. The Supreme Court then held that the plaintiff’s complaint otherwise failed to suggest that he was entitled to relief for his claim because it failed to allege facts supporting each element of this claim. See, id. at 682-86. Furthermore, Rule 12(b)(6) forms a proper basis for dismissal of a claim on statute of limitations grounds where it is “apparent from the face of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal quotations omitted). Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 6 of 18 7 B. Plaintiff’s Negligence Claims Are Untimely Under Any Potentially Applicable Statute of Limitations. Based on Plaintiff’s own allegations, both of her negligence claims (Counts I and II) must be dismissed because they were filed outside of the applicable statute of limitations period. As discussed in further detail below, the Plaintiff does not allege a single cognizable injury (or type of injury); nevertheless, as plead, Plaintiff’s claims fall outside of any potentially applicable limitations period. Plaintiff worked at The Fresh Market from 2010-2012, so it can only be presumed that the allegations giving rise to her employment-related claims against The Fresh Market occurred during that period. In Georgia, the only potentially applicable statute of limitations periods for Plaintiff’s claims are as follows: one year for injuries to reputation; two years for personal injury; and four years for personal property injury. See, O.C.G.A. §§ 9-3-33 and 9-3-31. Even if Plaintiff alleges that her causes of action arose as of the last date of her employment, in 2012, the limitations period for any such claim would have expired - in 2013; 2014; and 2016 (respectively). The Complaint in this matter was filed with the Fulton County State Court on or about May 5, 2017. See, Complaint. In the introductory paragraph of the Complaint, Plaintiff baldly references a Georgia tolling statute, O.C.G.A. § 9-3-99, but provides no allegations as to how that statute applies in this case, if at all. O.C.G.A. § 9-3-99 is a tolling provision for torts arising from a crime, which tolls the running of the limitations period up Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 7 of 18 8 to 6 years when the tort claim is brought by a victim of the alleged crime (up to 6 years from the date of commission of the alleged crime giving rise to the tort claim, until prosecution or final termination of the criminal matter). Id. However, Plaintiff does not allege a crime that might toll the statute of limitations for her claims under that statute. The only criminal matter referenced in the Complaint is the reported arrest of Maurice Martin, which Plaintiff alleges involved “other employees” (not the Plaintiff). See, Complaint, at ¶ 10. Moreover, based on the allegations in the Complaint, Martin’s arrest occurred prior to Plaintiff’s period of employment with The Fresh Market. See, Id., at ¶ 10-11. Plaintiff alleges in paragraphs 10 and 11 of the Complaint that The Fresh Market was made aware of Martin’s propensity to engage in the fraudulent conduct as a result of his arrest on The Fresh Market premises (Id., at ¶ 10); and that, “[p]rior to” Plaintiff’s period of employment, The Fresh Market knew or should have known of that propensity (Id., at ¶ 11). Based on those allegations, it only follows that Martin’s arrest occurred prior to Plaintiff’s employment. No other criminal action is alleged or inferred, and Plaintiff plainly fails to allege that she was a victim of any crime. Therefore, any citation to O.C.G.A. § 9-3-99 is misplaced. Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 8 of 18 9 C. Plaintiff Has Failed to Allege a Prima Facie Case of Negligence or Negligent Supervision of Employees and, Thus, Both Claims Must Fail as a Matter of Law. Even if Plaintiff’s Complaints were not time barred, Plaintiff’s Complaint fails to plead “enough facts to state a claim to relief that is plausible on its face” because it is entirely void of any factual allegations sufficient to establish the essential elements of her negligence claims. i. Plaintiff Has Failed to Allege the Essential Elements of a Negligence Cause of Action. The required elements of general negligence cause of action are: (1) a duty owed by the defendant; (2) breach of that duty; (3) causation; and (4) injury or damages. See, Willingham, 2013 WL 440702, at *17; Rasnick v. Krishna Hosp., Inc., 289 Ga. 565, 566, 713 S.E.2d 835, 837 (2011). “[W]hile notice pleading may not require that the pleader allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (citations and internal quotation marks omitted). Here, the Complaint is devoid of any factual Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 9 of 18 10 allegation, or even inference, that Plaintiff’s personal information has been disclosed or accessed; much less that it caused some type of harm to her. 1 Plaintiff alleges that as a condition of her employment she was required to provide The Fresh Market with her personal information, and alleges (in a conclusory fashion) that The Fresh Market had a duty to protect that information. Complaint, at ¶ ¶ 6-7. But, Plaintiff does not allege any facts concerning a breach of that alleged duty. The Complaint makes reference to Maurice Martin’s arrest and alleges that he committed fraudulent actions against other employees of The Fresh Market, apparently sometime before Plaintiff was employed. 2 See, Id., at ¶¶ 9-11. However, Plaintiff does not allege a single fact concerning any fraudulent action against her by Martin, or by anybody else, nor does Plaintiff allege any connection whatsoever between her personal information and the alleged misconduct of Martin (which apparently occurred before she was even employed with The Fresh Market). 1 Because Plaintiff fails to allege an injury, each of her claims must also be dismissed pursuant to Rule 12(b)(1) because Plaintiff lacks Article III standing. However, The Fresh Market reserves further discussion regarding Plaintiff’s lack of standing because this court has held that where an injury-in-fact Article III argument “subsumes” a defendant's proper Rule 12(b)(6) argument for failure to state a claim, 12(b)(6) is the more appropriate vehicle and the 12(b)(1) argument is moot. See, Willingham, 2013 WL 440702, at *8. 2 As discussed in Section III(B) above, Plaintiff alleges in the Complaint that Martin’s arrest occurred prior to Plaintiff’s employment. Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 10 of 18 11 Plaintiff does not allege that anybody misappropriated, stole, accessed, or even saw her information. Most importantly, she does not allege any facts inferring a resulting injury or damages, of any kind. Indeed, the only factual allegations within the framework of the Complaint that reference Plaintiff whatsoever are allegations that: Plaintiff is a resident of Georgia (Id., at ¶ 1); was employed by The Fresh Market between 2010 and 2012 (Id., at ¶ 5); was required to provide The Fresh Market with personal and confidential information (Id., at ¶ 6); and that The Fresh Market failed to warn Plaintiff that Martin had allegedly been arrested (Id., at ¶ 13). Additionally, even if Plaintiff did sufficiently plead a cognizable injury or damages, “a duty to safeguard and protect the personal information of another has not been expressly recognized in Georgia caselaw.” See, McConnell v. Dep't of Labor, 337 Ga. App. 457, 459, 787 S.E.2d 794, 797 (2016), cert. granted (Feb. 27, 2017). Since Plaintiff has not pleaded any statutory or common law authority establishing otherwise, she has also failed to establish a duty as a matter of law. As set forth above, Plaintiff has failed to allege facts sufficient to establish duty, breach, causation, or injury. Therefore, she has failed to plead a claim of negligence, and Count I must be dismissed as a matter of law. Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 11 of 18 12 ii. Plaintiff Has Failed to Allege the Essential Elements of a Negligent Supervision Cause of Action. For the same reasons as those set forth immediately above, Plaintiff likewise failed to allege facts sufficient to support her negligent supervision claim against The Fresh Market. A claim for negligent supervision “arises when an employer negligently hires, retains or supervises an employee and that employee subsequently harms the plaintiff.” Farrell v. Time Serv., Inc., 178 F. Supp. 2d 1295, 1300 (N.D. Ga. 2001) (emphasis added); see also, Leo v. Waffle House, Inc., 298 Ga. App. 838, 841, 681 S.E.2d 258, 262 (2009) (“[a]n employer may be held liable for negligent supervision only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee's tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff”) (emphasis added). Accordingly, a claim for negligent supervision or retention is “derivative of the underlying [tort] claim,” and thus, “if the underlying claim fails, the plaintiff can not [sic] sustain the claim for negligent retention.” Ekokotu v. Boyle, 294 F. App'x 523, 527 (11th Cir. 2008) (unpublished opinion) (citing, Phinazee v. Interstate Nationalease, Inc., 237 Ga. App. 39, 41, 514 S.E.2d 843, 846 (1999)). Because Plaintiff did not sufficiently allege facts establishing the elements of an underlying negligence claim, and more specifically, because Plaintiff has not alleged any injury, she has failed to establish a negligent supervision claim. Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 12 of 18 13 Moreover, Plaintiff does not plead any facts tending to show that The Fresh Market was aware of, or should have been aware of, Martin’s alleged tendency to engage in “willful and fraudulent use of the social security numbers of other employees.” See, Complaint, at ¶¶ 11, 23-24. While Plaintiff generally alleges, in a conclusory fashion, that Martin was previously arrested on The Fresh Market’s premises and that The Fresh Market knew or should have known of Martin’s alleged propensity (Complaint, at ¶¶ 9-11, 13, 22, 23-24), Plaintiff has not pleaded any facts about The Fresh Market’s knowledge of that arrest, the substance of the charges, or its adjudication. As a result, this Court is forced to speculate whether such an event was enough to show that The Fresh Market knew or should have known that Martin had a tendency to engage in unlawful behavior relative to Plaintiff's claim. Accordingly, Plaintiff's negligent supervision claim is insufficiently pled and Count II must be dismissed as a matter of law. Simply stated, The Fresh Market is entitled to know what claims are being asserted against it. Yet, Plaintiff’s Complaint contains nothing more than “a formulaic recitation” of the elements of her causes of action with an unadorned “the-defendant-unlawfully-harmed-me” accusation, Iqbal, 556 U.S. at 678, and Plaintiff fails to provide even “a short and plain statement of the claim showing that [she] is entitled to relief.” See, Fed. R. Civ. P. 8(a)(2). Instead, the factual allegations in Plaintiff’s Complaint are the exact types of “speculative,” Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 13 of 18 14 “unadorned,” and “naked assertions” the Supreme Court warned against in Twombly and Iqbal. As such, Plaintiff’s negligence claims (Counts I and II) fail to satisfy the notice pleading requirements under the Civil Practice Act and must be dismissed pursuant to Rule 12(b)(6). D. Plaintiff’s Claim for Attorney’s Fees Fails As a Matter of Law. Plaintiff also asserts a claim for attorney's fees under O.C.G.A. § 13-6-11 (Count III). However, because Plaintiff’s substantive claims (Counts I and II) fail as a matter of law and must be dismissed, the claim for attorney’s fees cannot stand on its own and must be dismissed as well. “O.C.G.A. § 13-6-11 does not create an independent cause of action but merely permits in certain limited circumstances the recovery of expenses of litigation incurred as an additional element of damages.” Tri-State Consumer Ins. Co. v. LexisNexis Risk Sols., Inc., 858 F. Supp. 2d 1359, 1371 (N.D. Ga. 2012). Therefore, the ability to state a claim under O.C.G.A. § 13- 6-11 “depends upon whether [plaintiff] has stated at least one viable substantive claim.” Id.; see also, Dantzler, Inc. v. Hubert Moore Lumber Co., 2013 WL 5372750, at *3 (M.D. Ga. Sept. 24, 2013) (“A claim for fees under § 13-6-11 cannot stand on its own. It must have a substantive claim for relief to which it can attach”); United Companies Lending Corp. v. Peacock, 267 Ga. 145, 146, 475 S.E.2d 601, 602 (1996) (“A prerequisite to any award of attorney fees under O.C.G.A. § 13-6-11 is the award of damages or other relief on the underlying Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 14 of 18 15 claim”). As discussed in detail above, all of Plaintiff’s substantive claims fail as a matter of law. Therefore, Plaintiff’s claim for attorney’s fees (Count III) must likewise be dismissed. IV. CONCLUSION For the foregoing reasons, The Fresh Market respectfully requests that this Court grant its Motion and issue an order dismissing Plaintiff’s Complaint in its entirety, with prejudice, pursuant to Rule 12(b)(6). Respectfully submitted this 14 th day of June, 2017. s/ Jeffrey J. Costolnick. Jeffrey J. Costolnick Georgia Bar No. 637168 OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. One Ninety One Peachtree Tower 191 Peachtree Street, N.E., Suite 4800 Atlanta, Georgia 30303 Telephone: (404) 881-1300 Fax: (404) 870-1732 jeffrey.costolnick@ogletreedeakins.com Attorneys for The Fresh Market Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 15 of 18 16 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Rachel Arnold, ) ) Plaintiff, ) ) v. ) C/A No. 1:17-cv-02089-SCJ ) The Fresh Market, Inc., ) ) Defendant. ) ) CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(D) This is to certify that the above motion and memorandum in support of same were prepared using Times New Roman 14 point font in accordance with Local Rule 5.1(C). This 14 th day of June, 2017. s/ Jeffrey J. Costolnick. Jeffrey J. Costolnick GA Bar No. 637168 Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 16 of 18 17 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Rachel Arnold, ) ) Plaintiff, ) ) v. ) C/A No. 1:17-cv-02089-SCJ ) The Fresh Market, Inc., ) ) Defendant. ) ) CERTIFICATE OF SERVICE I hereby certify that on this 14 th day of June, 2017, I electronically filed the foregoing DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT BECAUSE PLAINTIFF’S CLAIMS ARE TIME BARRED AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED with the Clerk of Court using the CM/ECF system and also served the foregoing, via Federal Express and e-mail, to the following attorney of record: S. Quinn Johnson, Esq. Johnson PC, Attorneys at Law 1640 Powers Ferry Rd SE, Bldg. 19-300 Marietta, GA 30067 quinn.johnson@jcoip.com Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 17 of 18 18 /s/ Jeffrey J. Costolnick Jeffrey J. Costolnick Georgia Bar No. 637168 30121011.1 Case 1:17-cv-02089-SCJ Document 3-1 Filed 06/14/17 Page 18 of 18