Edmonds-Radford v. Southwest Airlines

MOTION to Dismiss for Failure to State a Claim and Insufficient Service of Process, MOTION to Dismiss for Lack of Jurisdiction

D. Colo.May 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:16-cv-02860-LTB-STV KRISTA EDMONDS-RADFORD, Plaintiff, v. SOUTHWEST AIRLINES CO., Defendant. DEFENDANT SOUTHWEST AIRLINES CO.’S MOTION TO DISMISS WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(5), AND 12(b)(6) Defendant Southwest Airlines Co. (“Southwest”), by and through its attorneys, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., hereby submits its Motion to Dismiss With Prejudice Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6), and states as follows: I. INTRODUCTION AND PROCEDURAL HISTORY Plaintiff Krista Edmonds-Radford (“Plaintiff”) filed her original Complaint on November 22, 2016 (“Original Complaint”) (Dkt. #1) and purported to serve it on an employee at Southwest on January 24, 2017. (See Process Receipt and Return, Dkt. #9.) Yet, Plaintiff’s service of process was insufficient because she failed to serve a summons, as required by Fed. R. Civ. P. 4(c), and did not serve any person authorized to accept service on behalf of Southwest pursuant to Fed. R. Civ. P. 4(h). In addition, Plaintiff’s Original Complaint failed to state a claim under Fed. R. Civ. P. 8, as mandated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and its progeny, because it failed to include factual allegations other than those contained in her Request for Relief, and was conclusory with regard to Southwest’s alleged unlawful Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 1 of 10 2 conduct. On February 14, 2017, Southwest filed its Motion to Dismiss With Prejudice Pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6) (“First Motion to Dismiss”) (Dkt. #10), in which it addressed Plaintiff’s failure to properly serve her Original Complaint and Plaintiff’s failure to state a claim. This Court subsequently set a Status Conference, which occurred on March 27, 2017, to address these deficiencies. (Dkt. #17.) During the March 27, 2017 Status Conference, this Court ordered Plaintiff to file an amended complaint on or before April 10, 2017 and denied Southwest’s First Motion to Dismiss as moot, with leave to re-file once Plaintiff filed an amended complaint. (Dkt. #19.) In addition, during the March 27, 2017 Status Conference, discussion was held regarding whether undersigned counsel would be willing to accept service of an amended complaint on Southwest’s behalf. 1 (Dkt. #19.) On April 7, 2017, Plaintiff filed her “Motion to Dismiss Defendant [sic] Motion to Dismiss Title VII Claims of Inproper [sic] Service and Failure to State Claims of Remedy” (Dkt. #20) and on April 10, 2017, Plaintiff filed her “Ad Hoc Amendment to Krista Edmonds Radford Motion to Qwash [sic] Southwest Airlines Motion to Dismiss Her Claims of Civil Rights Voilations [sic].” (Dkt. #21.) The Court construed Dkt. #20 and #21 (collectively “Plaintiff’s First Amended Complaint”) to be Plaintiff’s intended amended complaint pursuant to its Order following the March 17, 2017 Status Conference. (Dkt. #23.) The Court, sua sponte, struck Plaintiff’s First Amended Complaint and ordered Plaintiff to file a subsequent amended complaint conforming to the requirements of Fed. R. Civ. P. 8(a) on or before April 28, 2017. 1 Southwest had not authorized its counsel to accept service on its behalf at that time and has not since authorized such service. Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 2 of 10 3 The Court specifically held Plaintiff’s First Amended Complaint failed to clearly identify the intended defendants, failed to include the jurisdictional statement required by Rule 8(a), should have been titled “Amended Complaint,” and failed to contain all relevant allegations in a single document. Plaintiff filed a subsequent Complaint (Dkt. #24) on April 28, 2017 (“Second Amended Complaint”). But, her Second Amended Complaint is still deficient for multiple reasons. First, Plaintiff’s service of process remains insufficient because she has yet to serve a summons on any person authorized to accept service on behalf of Southwest pursuant to Fed. R. Civ. P. 4(h). Thus, her Second Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process. Moreover, more than 90 days has passed since Plaintiff filed her Original Complaint, and, pursuant to Fed. R. Civ. P. 4(m), her time to effectuate service has lapsed. Second, Plaintiff’s Second Amended Complaint asserts a claim for retaliation under Title VII, but Plaintiff failed to exhaust her administrative remedies with respect to this claim because she never filed a charge of discrimination alleging Southwest violated her rights under Title VII. Failure to exhaust an administrative remedy is a jurisdictional defect, and Plaintiff’s retaliation claim should be dismissed with prejudice under Fed. R. Civ. P. 12(b)(1). Finally, as with her Original Complaint, even if Plaintiff had properly served her Second Amended Complaint, she still fails to state a claim under Fed. R. Civ. P. 8 because her Second Amended Complaint is devoid of specific factual allegations concerning Southwest’s alleged unlawful conduct. Plaintiff still fails to identify her alleged disability or the accommodation she purportedly requested, and does not explain how, if at all, her alleged disability played any role Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 3 of 10 4 in any decision by Southwest affecting her employment. Accordingly, Plaintiff’s Second Amended Complaint still fails to contain sufficient allegations of fact to state a claim for relief that is plausible on its face and should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). II. APPLICABLE LEGAL STANDARD AND ARGUMENT A. Plaintiff Has Still Failed to Serve a Summons or Her Second Amended Complaint Plaintiff’s Second Amended Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(5) because she has not served a summons in this case and has not served any person authorized to accept service on Southwest’s behalf. Plaintiff bears the burden of proving the sufficiency of service of process by showing she has satisfied the strictures of Rule 4 of the Federal Rules of Civil Procedure. Burris v. U.S. Bank Nat. Ass’n, 2010 WL 5824279, at *2 (D. Colo. Sept. 29, 2010) 2 (citing Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)); Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008). Plaintiff never served a summons with her Original Complaint nor did she serve one with her Second Amended Complaint. Fed. R. Civ. P. 4(c) provides, “A summons must be served with a copy of the complaint.” Fed. R. Civ. P. 4(c) (emphasis added). Although Plaintiff purportedly attempted to serve her Original Complaint on Daniel Mulholland, a Southwest Customer Service Supervisor II, she failed to serve a summons at that time. (See Declaration of Daniel Mulholland at ¶6, attached as Exhibit B to First Motion to Dismiss.) In fact, as of the date of this Motion, the Civil Docket shows no record of any request or issuance of a summons. (See Docket, attached hereto as Exhibit B.) Because Plaintiff has never served a summons in 2 All unreported cases cited herein are attached hereto as Exhibit A. Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 4 of 10 5 this case, she has failed to meet the requirements of Fed. R. Civ. P. 4(c), and her Second Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(5). As detailed in Southwest’s First Motion to Dismiss, Plaintiff also failed to satisfy Fed. R. Civ. P. 4(h) because she did not serve any person authorized to accept service. (See Dkt. #10.) Subsequent to the March 27, 2017 Status Conference, undersigned counsel represented to Plaintiff by telephone that he was not authorized to accept service on behalf of Southwest and Plaintiff has not filed any waiver of service in this case. (See Docket, Exhibit B.) Because Plaintiff failed to serve her Original Complaint upon any person authorized to accept service for Southwest, her purported service was ineffective. To date, Plaintiff has not purported to serve her Second Amended Complaint on any person, and the Docket shows no record of any affidavit of service subsequent to Plaintiff’s filing of the Second Amended Complaint. (See Docket, Exhibit B.) Accordingly, Plaintiff has failed to properly serve any pleading in this case, and her Second Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(5). B. Plaintiff’s Retaliation Claim Fails Because She Has Not Exhausted Her Administrative Remedies Plaintiff’s Title VII retaliation claim should also be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because she has failed to exhaust her administrative remedies with regard to this claim. In employment discrimination cases, exhaustion of administrative remedies is a jurisdictional prerequisite. See Hung Thai Pham v. James, 630 Fed. App’x 735, 737 (10th Cir. 2015). A plaintiff asserting a claim under Title VII must fully exhaust her administrative remedies for each alleged individual unlawful act. See MacKenzie v. City & Cnty. Of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). To fully exhaust Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 5 of 10 6 her administrative remedies, Plaintiff’s Title VII retaliation claim must fall within the scope of the administrative investigation that can reasonably be expected to follow from her Charge of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”). See Eke v. CaridianBCT, Inc., 490 Fed. App’x 156, 162 (10th Cir. 2012). Although Plaintiff alleges in her Second Amended Complaint she filed a Charge of Discrimination with the EEOC on August 25, 2015, that Charge of Discrimination, which was appended to Plaintiff’s Original Complaint, makes no reference to retaliation based on any conduct protected by Title VII. (See Dkt. #1, p. 7 & Dkt. #24, ¶7.) Rather, Plaintiff’s Charge of Discrimination is based solely on alleged violations of the Americans with Disabilities Act. (See Dkt. #1, p. 7.) As a result, by failing to exhaust her administrative remedies, Plaintiff has not satisfied a jurisdictional prerequisite for bringing her Title VII retaliation claim, and her claim should be dismissed with prejudice under Fed. R. Civ. P. 12(b)(1). C. Plaintiff’s Second Amended Complaint Fails to State a Claim Pursuant to Rule 8 Finally, even if Plaintiff had exhausted her administrative remedies, Plaintiff’s Second Amended Compliant should be dismissed in its entirety with prejudice under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff’s Second Amended Complaint is devoid of factual allegations other than threadbare recitals of some of the elements of claims for disability discrimination and retaliation under Title VII, is conclusory, and does not identify (i) her alleged disability, (ii) any request for accommodation, (iii) how her purported disability played any role in any decision affecting her employment, (iv) who, if anybody, made derogatory remarks against Plaintiff based on her purported disability or alleged protected conduct, (v) what protected activity she relies on in support of her retaliation claim, or Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 6 of 10 7 (vi) how Southwest allegedly “set up” Plaintiff to fail after she allegedly engaged in protected activity. Rule 8 of the Federal Rules of Civil Procedure requires Plaintiff to craft a complaint which contains “‘enough allegations of fact to state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a complaint has sufficient factual content to enable the Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory allegations, do not suffice.” Iqbal, 129 S.Ct. at 1949. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 555, 557). The same standards apply to pro se plaintiffs. Indeed, a pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Wolf v. County of Gilpin, 2010 WL 5094054, at *3 (D. Colo. Sept. 30, 2010). In her Second Amended Complaint, Plaintiff does not allege any facts other than conclusory allegations to support a claim of discrimination on the basis of disability. In fact, Plaintiff, in conclusory fashion, only alleges on Page 5 of her Second Amended Complaint that she was “dismissed by my employer for my disability and my need for accommodations,” that she was not given a reasonable accommodation, and unidentified “agents of Southwest” made Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 7 of 10 8 “inapposite remarks to and about [P]laintiff.” (Dkt. #24.) But, Plaintiff does not identify what her alleged disability is, any accommodation she sought, who made comments about her, or how her alleged disability had any bearing on Southwest’s decisions affecting her employment. (See id.) Absent any allegation of any facts supporting her claim that she was discriminated against, Plaintiff simply does not meet the pleading requirements under Fed. R. Civ. P. 8, as articulated by Twombly and its progeny. Thus, Plaintiff’s Second Amended Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff’s claim for retaliation under Title VII contained in her Second Amended Complaint similarly fails to satisfy Rule 8, as articulated by Twombly and its progeny. In support of her retaliation claim, Plaintiff alleges she complained of discrimination to her supervisors and managers, and following these alleged complaints, Southwest’s management “set her up” by placing her in employment situations she could not perform without accommodation. Plaintiff’s Retaliation Claim is stated under Title VII, 42 U.S.C. § 2000e, et seq., (see Dkt. #24, p. 5) which prohibits retaliation where an employee opposes an unlawful practice relating to discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. §§ 2000e-2 & 2000e-3. Although Plaintiff alleges she is African-American and female in her Second Amended Complaint, she does not identify a single instance in which she opposed discrimination based on these or any other statuses protected by Title VII. Moreover, Plaintiff does not allege any facts regarding how her alleged protected activity had any bearing on any of Southwest’s decisions affecting her employment, who she complained to about any alleged discrimination, how Southwest allegedly set her up to fail, who was involved in any decision to set her up, or any other facts apart from her conclusory allegations that Southwest Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 8 of 10 9 retaliated against her. As with her disability discrimination claim, Plaintiff’s allegations relating to her claim for retaliation under Title VII simply recite threadbare allegations of the elements of a claim for relief. Under these circumstances, Plaintiff’s claim for retaliation under Title VII falls short of the plausibility standard required by Twombly and its progeny and her Second Amended Complaint should be dismissed with prejudice. III. CONCLUSION WHEREFORE, based on the foregoing, Defendant Southwest Airlines Co. respectfully requests this Honorable Court grant its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6) and enter an Order dismissing Plaintiff’s Second Amended Complaint with prejudice. Respectfully submitted this 12 th day of May, 2017. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. s/ Raul Chacon, Jr. Roger G. Trim Raul Chacon, Jr. 1700 Lincoln Street, Suite 4650 Denver, CO 80203 Telephone: 303.764.6800 Facsimile: 303.831.9246 roger.trim@ogletree.com raul.chacon@ogletree.com Attorneys for Defendant Southwest Airlines Co. Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 9 of 10 10 CERTIFICATE OF SERVICE I hereby certify that on this 12 th day of May, 2017, I electronically filed the foregoing DEFENDANT SOUTHWEST AIRLINES CO.’S MOTION TO DISMISS WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(5), and 12(b)(6) with the Clerk of Court using the CM/ECF system and served a copy of such filing via U.S. Mail (certified/return receipt requested), postage prepaid to the following: Krista Edmonds-Radford 3601 S. Kirk St. Aurora, CO 80013 s/ Kimberly Curtis Kimberly Curtis, Paralegal Case 1:16-cv-02860-LTB-STV Document 25 Filed 05/12/17 USDC Colorado Page 10 of 10 Exhibit A Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 1 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 2 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 3 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 4 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 5 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 6 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 7 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 8 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 9 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 10 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 11 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 12 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 13 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 14 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 15 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 16 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 17 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 18 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 19 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 20 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 21 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 22 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 23 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 24 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 25 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 26 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 27 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 28 of 29 Case 1:16-cv-02860-LTB-STV Document 25-1 Filed 05/12/17 USDC Colorado Page 29 of 29 Exhibit B Case 1:16-cv-02860-LTB-STV Document 25-2 Filed 05/12/17 USDC Colorado Page 1 of 4 Case 1:16-cv-02860-LTB-STV Document 25-2 Filed 05/12/17 USDC Colorado Page 2 of 4 Case 1:16-cv-02860-LTB-STV Document 25-2 Filed 05/12/17 USDC Colorado Page 3 of 4 Case 1:16-cv-02860-LTB-STV Document 25-2 Filed 05/12/17 USDC Colorado Page 4 of 4