Davis v. Yellowpages.Com Llc et al

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

N.D. Ga.February 24, 2017

LEGAL02/36999226v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF COMES NOW Defendants Yellowpages.com LLC and YP Holdings, LLC (collectively “YP”) and, pursuant to Federal Rule of Civil Procedure 12(b)(6) and other applicable law, submit this Partial Motion to Dismiss Plaintiff’s Complaint for Damages and Equitable Relief. As demonstrated more fully in the accompanying Memorandum of Law, Counts III, IV, and V of Plaintiff’s Complaint should be dismissed due to Plaintiff’s failure to state a claim upon which relief may granted. Moreover, the portions of Counts II, IV, VII, VIII, and X that are based on Plaintiff’s unsupported assertion that she was denied a reasonable accommodation under the Americans With Disabilities Act should also be dismissed for failure to state a claim upon which relief may be granted. Case 1:17-cv-00397-ELR-JKL Document 9 Filed 02/24/17 Page 1 of 3 2 LEGAL02/36999226v1 This Motion and the relief requested by YP are supported by the pleadings of record and the Memorandum of Law filed herewith. Respectfully submitted this 24th day of February, 2017. ALSTON & BIRD LLP s/ Ashley Brightwell Ashley D. Brightwell Georgia Bar No. 207459 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (telephone) (404) 881-7777 (facsimile) Counsel for Defendants Case 1:17-cv-00397-ELR-JKL Document 9 Filed 02/24/17 Page 2 of 3 3 LEGAL02/36999226v1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that on February 24, 2017, the foregoing DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF was filed electronically with notice of filing sent electronically to all counsel of record by operation of the Court’s electronic filing system. s/ Ashley Brightwell Ashley D. Brightwell Case 1:17-cv-00397-ELR-JKL Document 9 Filed 02/24/17 Page 3 of 3 LEGAL02/36992383v2 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF Defendants Yellowpages.com LLC and YP Holdings, LLC (collectively “YP”) submit this Memorandum in Support of their Partial Motion to Dismiss Plaintiff’s Complaint for Damages and Equitable Relief pursuant to Federal Rule of Civil Procedure 12(b)(6).1 1 Because Federal Rule of Civil Procedure 12(a)(4) provides that service of a Rule 12 motion to dismiss extends the answer deadline until 14 days after the defendant receives notice of the Court’s action on the motion, YP has not answered the remaining claims set forth in Plaintiff’s Complaint. See Fed. R. Civ. P. 12(a)(4)(A); ThermoLife Int’l, LLC v. Gaspari Nutrition Inc., No. CV 11-01056-PHX-NVW, 2011 U.S. Dist. LEXIS 145504, at *16-*17 (D. Ariz. Dec. 16, 2011) (holding that a partial motion to dismiss tolls the time to respond to all claims under 12(a)(4)); Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 366 (E.D.N.Y. 2009) (filing a partial motion to dismiss suspends the time to answer claims or counterclaims not subject to the motion under Fed. R. Civ. P. 12(a)(4)); Beaulieu v. Bd. of Trs. of Univ. of W. Fla., No. 3:07cv30/RV/EMT, 2007 U.S. Dist. LEXIS 98749, at *2-*3 n. 1 (N.D. Fla. Aug. 24, 2007) Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 1 of 15 2 LEGAL02/36992383v2 I. INTRODUCTION Plaintiff Robin Lee “Leah” Davis (“Plaintiff”) is a former employee of YP who has filed a ten-count Complaint under the Americans With Disabilities Act (“ADA”), the Family and Medical Leave Act, (“FMLA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Equal Pay Act (“EPA”). As explained below, although Count III of the Complaint summarily contends that Plaintiff was denied a “reasonable accommodation” under the ADA, that Count - as well as the portions of Counts II, IV, VII, VIII, and X that are based on the same unsupported contention - fails to state a claim as the Complaint is devoid of even a single fact that would suggest such an accommodation was denied. On the contrary, the face of the Complaint actually reflects an accommodation that was requested by Plaintiff and granted by YP. Likewise, Counts IV and V should be dismissed pursuant to Rule 12(b)(6) because they, too, fail to state claims upon which relief may be granted. Although those counts purport to state interference and retaliation claims under the FMLA, (explaining that the Court had ruled that the defendant’s partial motion to dismiss automatically extended its time to answer under Fed. R. Civ. P. 12(a)(4)); Pushko v. Klebener, 3:05-cv-211-J- 25HTS, 2005 U.S. Dist. LEXIS 49132, at *6 (M.D.Fla. June 10, 20015) (holding that “the filing of a motion to dismiss a portion of a complaint postpones equally the time for answering every part of the pleading”). However, if the Court would like YP to file an Answer before the Court rules on its Partial Motion to Dismiss, YP respectfully requests that it be granted an additional 14 days to file its Answer. Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 2 of 15 3 LEGAL02/36992383v2 the only relevant facts pled in the Complaint are that Plaintiff (1) requested leave, (2) was granted permission to take leave, (3) was told by her supervisor that taking leave “would be no problem,” and (4) was given a positive performance review after the leave was taken. II. SUMMARY OF PLAINTIFF’S ALLEGATIONS A. Plaintiff’s Allegations Regarding Her Request for a “Reasonable Accommodation” Under the ADA. Plaintiff claims that, in 2013, her daughter was diagnosed with a serious health condition and that, as a result, she “requested that she be allowed to work from home on [an] ‘as needed’ basis in order to be able to provide care for her daughter….” (Plaintiff’s Complaint for Damages and Equitable Relief (“Compl.”) ¶¶ 28, 30) Then, following a change in her reporting structure, in April of 2015, Plaintiff claims that she requested a reasonable accommodation for her own disability; namely, “that she be allowed to work from home during periodic flare- ups of her chronic fibromyalgia, chronic fatigue syndrome, and migraine headaches and Chronic Fatigue Syndrome.” Id. at ¶¶ 40, 45. According to the Complaint, Plaintiff’s supervisor, Kristin Crossman, refused to give her the form to request a reasonable accommodation but, instead, told Plaintiff “that she wanted to handle her request to work from home Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 3 of 15 4 LEGAL02/36992383v2 ‘informally.’” Id. at ¶ 46. Nowhere in her Complaint does Plaintiff contend that she was not permitted to work from home as requested. B. Plaintiff’s Allegations Regarding Her Request for Leave Under the FMLA. Plaintiff also contends that, as a result of “flare-ups” of her own serious health condition, she requested intermittent leave under the FMLA. Id. at ¶ 33. Subsequently, in January of 2015, Plaintiff alleges that she began reporting to Ms. Crossman and that Ms. Crossman knew that she had taken and would in the future need to take leave under the FMLA as a result of her own serious health condition and the serious health condition of her daughter. Id. at ¶¶ 40-42. According to Plaintiff, “Ms. Crossman told [her] not to worry about requesting leave and told her there would be no problem as long as she completed her work.” Id. at ¶ 43. Then, in March of 2015, Plaintiff claims that she “received a favorable annual performance review from Crossman.” Id. at ¶ 44. Just as she never contends that she was denied the accommodation of working from home, nowhere in her Complaint does Plaintiff plead any facts to support her summary contention that YP interfered with her need to take leave under the FMLA or that it retaliated against her for having done so. On the contrary, according to the Complaint, Plaintiff was told that taking leave “would be no problem” and that she then received a favorable performance review. Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 4 of 15 5 LEGAL02/36992383v2 III. STANDARD OF REVIEW Rule 8(a) of the Federal Rules of Civil Procedure requires that a Complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief….” Fed. R. Civ. P. 8(a). While the pleading standard under the Federal Rules of Civil Procedure is by no means onerous, in Bell Atlantic Corp. v. Twombly, the Supreme Court held that Rule 8(a) requires more than a conclusory recitation of the elements of a claim: “[A] plaintiff’s obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). In articulating this pleading standard, the Court in Twombly disapproved of the pleading standard previously articulated in Conley v. Gibson, 355 U.S. 41 (1957). Twombly, 550 U.S. at 563 (holding that the standard articulated in Conley - namely, that complaints should not be dismissed unless there is “no set of facts” which plaintiff could prove to support her claim - is “best forgotten as an incomplete, negative gloss on an accepted pleading standard”). Two years later in Ashcroft v. Iqbal, the Supreme Court elaborated upon its holding in Twombly, explaining that Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and emphasizing that Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 5 of 15 6 LEGAL02/36992383v2 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 556 U.S. 662, 678 (2009). The Court explained that, “[t]o 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.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully,” and a complaint falls short of the plausibility standard where the plaintiff “pleads facts that are ‘merely consistent with’ a defendant’s liability.” Id. Thus, under this pleading standard, even when viewing the facts in the light most favorable to the plaintiff, “naked assertions devoid of further factual enhancement” contribute nothing to the sufficiency of the complaint. Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). And, finally, while Rule 8 does not constitute a “hyper-technical, code-pleading regime,” it also “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 6 of 15 7 LEGAL02/36992383v2 IV. ARGUMENT AND CITATION OF AUTHORITY A. Count III of the Complaint Should Be Dismissed Because Plaintiff Fails to State a Plausible Claim for Failure to Accommodate Under the ADA. An employer unlawfully discriminates against a qualified individual with a disability when it fails to provide “reasonable accommodations” for the disability, unless doing so would impose an undue hardship. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (citing 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a)). “An accommodation can qualify as ‘reasonable,’ and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job.”2 Lucas, 257 F.3d at 1249 (citing LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998)). “To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal interactive process with the individual with a disability in need of an accommodation.” 29 C.F.R. § 1630.2(o)(3) (emphasis added). 2 Although YP is not seeking dismissal due to the unreasonableness of the requested accommodation at this time, it is clear that this Court does not consider Plaintiff’s requested accommodation - working from home - to be a “reasonable” one under the ADA. See Paleologos v. Rehab Consultants, Inc., 990 F.Supp. 1460, 1467 (N.D.Ga. 1998) (“Generally, an employer is not required to accommodate a disability by allowing the disabled worker to work at home”); Whillock v. Delta Air Lines, Inc., 926 F.Supp. 1555 (N.D.Ga. 1995) (holding that working from home did not constitute a reasonable accommodation and noting that “[t]eamwork, or even work requiring supervision, cannot be performed at home without a substantial reduction in the quality and productivity of the employee’s performance”). Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 7 of 15 8 LEGAL02/36992383v2 Plaintiff contends that YP violated the ADA by “failing and refusing to engage in the interactive process” and by “failing and refusing to provide and otherwise denying her” the “reasonable” accommodation of working from home during periodic flare-ups of her condition.3 (Compl. ¶¶ 45, 75) However, the facts pled in the Complaint wholly belie that summary contention. In fact, Plaintiff even admits that her supervisor did engage in the interactive process - and even told her that she wanted to handle Plaintiff’s request to work from home “informally.”4 Id. at ¶ 46. Moreover, although Plaintiff contends that a colleague’s request to work from home was denied, she never once alleges that her own request was denied. Id. at ¶ 49. Plaintiff’s conclusory and formulaic recitation of the elements of an 3 Although Plaintiff also contends at ¶¶ 28 and 30 of her Complaint that, in 2013, she “requested to be allowed to work from home on an ‘as needed basis’” in order to provide care for her daughter, she does not contend that her request was denied or make clear whether this allegation is intended to support her “reasonable accommodation” claim. In any event, “federal law does not require employers to make reasonable accommodations for employees to care for their disabled relatives.” Pennington v. Wal-Mart Stores East, 2014 WL 1259727 at *5 (N.D.Ala. 2014). See also Rocky v. Columbia Lawnwood Regional Med. Ctr., 54 F.Supp.2d 1159, 1165 (S.D.Fla. 1999) (holding that “the associational provision of the ADA does not require employers to make any ‘reasonable accommodation’ for the disabilities of relatives or associates of a nondisabled employee”). 4 Even if Plaintiff’s supervisor had refused or otherwise failed to engage in the interactive process with Plaintiff, that alone does not constitute a violation of the ADA. See McKane v. UBS Financial Services, Inc., 363 Fed.Appx. 679, (11th Cir. 2010) (“…even assuming that [the employer] failed to engage in an interactive process, that failure neither amounted to a violation of the ADA nor relieved [the employee] of his burden of demonstrating the availability of a reasonable accommodation”). See also Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 8 of 15 9 LEGAL02/36992383v2 ADA claim with no facts to support it is expressly insufficient pursuant to the Supreme Court’s holding in Twombly. 550 U.S. at 555. B. The Portions of Counts II, IV, VII, VIII, and X that Are Based on YP’s Alleged Failure to Accommodate Should Be Dismissed Because Plaintiff Fails to State a Plausible Claim Under the ADA. In addition to asserting a standalone cause of action for failure to accommodate in Count III, Plaintiff contends that the alleged denial of her request to work from home constitutes an adverse employment action sufficient to support her claims for disability discrimination, associational discrimination, and retaliation under the ADA, as well as sex and/or “sex plus” discrimination and retaliation under Title VII and retaliation in violation of the EPA. (Compl. at Counts II, IV, VII, VIII, and X). As shown above, however, Plaintiff’s Complaint is completely devoid of even a single fact that supports her summary contention that her request for a reasonable accommodation was denied. Thus, the portions of Counts II, IV, VII, VIII, and X that rely on that unsupported contention should be dismissed.5 5 Even if Plaintiff had asserted facts that supported her contention that she was denied a reasonable accommodation, the portions of those Counts that rely on such contention should be dismissed for the additional reason that such a denial does not constitute an “adverse employment action” sufficient to support her claims under those statutes. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (holding that, to constitute an adverse employment action, the employee must show “a serious and material change in the terms, conditions, or privileges of employment” and that the subjective view of the significance and Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 9 of 15 10 LEGAL02/36992383v2 C. Plaintiff Fails to State a Plausible Claim for Unlawful Interference or Retaliation in Violation of the FMLA. As the Eleventh Circuit has routinely noted, pursuant to the FMLA, an employee may bring two types of claims: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act; and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in an activity protected by the Act. Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (citing Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)). Plaintiff purports to assert both types of claims under the FMLA, and both should be dismissed for failure to state a claim upon which relief may be granted. With respect to a claim for unlawful interference under the FMLA, “[a] Plaintiff claiming interference must demonstrate by a preponderance of the evidence that she was denied a benefit to which she was entitled.” Pereda, 666 F.3d at 1274 (quoting Harley v. Health Ctr. Of Coconut Creek, 487 F.Supp. 2d 1344, 1357 (S.D.Fla. 2006)). Here, although Count V of Plaintiff’s Complaint is adversity of the employer’s action is not controlling); Velez-Ramirez v. Puerto Rico, 827 F.3d 154, 158 (1st Cir. 2016) (rejecting plaintiff’s contention that the denial of her request for accommodation equated to a discharge and, thus, constituted an adverse employment action and holding that “an employer may deny a request for reasonable accommodations but nevertheless allow an employee to continue working. The statute also views a denial of reasonable accommodations and a discharge as two distinct acts.”) Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 10 of 15 11 LEGAL02/36992383v2 styled as an FMLA “interference” claim, nowhere in the Complaint does she contend - or even remotely insinuate - that YP denied her any benefit to which she was entitled under the FMLA. On the contrary, the “facts” included in the Complaint are that (1) she requested and, in fact, took intermittent leave under the FMLA in 2014 (Compl. ¶¶ 33-34, 42), and (2) her supervisor told her not to worry about requesting more leave and that doing so would be “no problem” (Compl. ¶ 43). Again, Plaintiff never contends that she requested a leave that was denied or that she was otherwise denied a benefit to which she was entitled. Thus, far from asserting facts supporting some sort of FMLA interference claim, the facts alleged in the Complaint show that YP acted in accordance with the requirements of the FMLA. A closer review of Count V reveals that Plaintiff is, in essence, attempting to assert a retaliation claim under the guise of a claim for unlawful interference. Indeed, Plaintiff defines the alleged “interference” as YP’s termination of her employment “when she was entitled to take leave” and its consideration of her use of protected leave as a “motivating factor” in its termination decision. (Compl. ¶ 94) Regardless of its moniker, Count V fails on its face. First, the simple fact that Plaintiff may have been “entitled” to take leave under the FMLA at the time of her termination does not, as Plaintiff appears to Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 11 of 15 12 LEGAL02/36992383v2 believe, automatically render her termination unlawful. Indeed, “[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216(a). See also Strickland, 239 F.3d at 1208 (holding that an employee’s right to return from FMLA leave is qualified in that she is not entitled to any right, benefit, or position other than that to which she would have been entitled had she not taken leave). Thus, the mere fact that her termination occurred during a time when she may have been entitled to take intermittent FMLA leave is far from sufficient to state a claim under that statute. Moreover, the Complaint is completely devoid of any facts that any leave she took under the FMLA factored in any way into the decision to terminate her employment. Indeed, to prove “retaliation” under the FMLA, Plaintiff would need to show that YP “intentionally discriminated against [her] in the form of an adverse employment action for having exercised an FMLA right.” Strickland, 239 F.3d at 1207. Here, Plaintiff alleges no facts to support that contention. Indeed, nowhere in Plaintiff’s Complaint does she contend that her supervisor frowned on the idea of her taking leave or even exhibited any sort of negative reaction to it. On the contrary, Plaintiff contends that her supervisor told her that taking leave was “no problem” and that, shortly after her supervisor learned of her previous FMLA leave Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 12 of 15 13 LEGAL02/36992383v2 and need to take future leave, she gave her a “favorable annual performance review.” (Compl. ¶¶ 43-44) Thus, Count V - as well as Count VI, which is actually styled as an FMLA “retaliation” claim and is based on the same conclusory allegations and formulaic recitation of the elements - should be dismissed for failure to state a claim upon which relief may be granted. V. CONCLUSION As the above makes clear, Plaintiff’s allegations are insufficient to satisfy the “facial plausibility” standard clearly articulated in Twombly and Iqbal. As noted above, this “plausibility standard” requires “more than a sheer possibility that a defendant has acted unlawfully,” and a complaint falls short of the standard where the plaintiff “pleads facts that are ‘merely consistent’ with a defendant’s liability.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Here, Plaintiff fails to even plead facts that are “merely consistent” with YP’s liability. On the contrary, the actual facts pled show that, in fact, there is no scenario pursuant to which liability could attach. As such, YP respectfully submits that its Partial Motion to Dismiss Plaintiff’s Complaint should be granted. Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 13 of 15 14 LEGAL02/36992383v2 Respectfully submitted this 24th day of February, 2017. ALSTON & BIRD LLP s/ Ashley Brightwell Ashley D. Brightwell Georgia Bar No. 207459 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (telephone) (404) 881-7777 (facsimile) Counsel for Defendants Per Local Rule 7.2(D), the brief does not contain more than 10 characters per inch of type. Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 14 of 15 15 LEGAL02/36992383v2 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ROBIN LEE “LEAH” DAVIS, ) ) Plaintiff, ) ) CIVIL ACTION v. ) File No. 1:17-cv-00397-ODE-JKL ) YELLOWPAGES.COM LLC, and ) YP HOLDINGS, LLC, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that on February 24, 2017, the foregoing MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF was filed electronically with notice of filing sent electronically to all counsel of record by operation of the Court’s electronic filing system. s/ Ashley Brightwell Ashley D. Brightwell Case 1:17-cv-00397-ELR-JKL Document 9-1 Filed 02/24/17 Page 15 of 15