Hernandez et al v. Riverside Mfg Llc

MOTION to Sever and Drop Misjoined Parties, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ind.May 22, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION MARGARITA HERNANDEZ IVONNE JURADO DELILA SANCHEZ, and MARIA ZAPAROLI, individually, Plaintiffs, v. RIVERSIDE MFG, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-CV-00160-TLS-SLC DEFENDANT’S MOTION TO SEVER AND DROP MISJOINED PARTIES AND PARTIAL MOTION TO DISMISS COMPLAINT Defendant Riverside Mfg, LLC (“Riverside”), by its attorneys, hereby moves this Court to: • Sever and drop Ivonne Jurado, Delila Sanchez, and Maria Zaparoli from this case because their claims have been misjoined; and • Dismiss Margarita Hernandez’s Title VII claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the claims are time-barred. As illustrated by the Complaint, Plaintiffs’ claims are discrete and separate. The Complaint raises unique factual and legal issues that predominate over any commonalities between the claims. In support of its Motions, and as discussed fully in Defendant’s Brief in Support of Motion to Sever and Drop Misjoined Parties and Partial Motion to Dismiss Complaint, Riverside states as follows: 1. Plaintiffs Margarita Hernandez (“Hernandez”), Ivonne Jurado (“Jurado”), Delila Sanchez (“Sanchez”), and Maria Zaparoli (“Zaparoli”) have joined together individually to file a USDC IN/ND case 1:17-cv-00160-TLS-SLC document 12 filed 05/22/17 page 1 of 4 single complaint alleging race and/or national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). 2. Plaintiffs also bring separate claims against Riverside. Hernandez, Jurado, and Sanchez (but not Zaparoli) allege retaliation under Title VII. Hernandez brings claims under the Family and Medical Leave Act (“FMLA”) for purportedly interfering with her rights under the FMLA and discriminating against her for seeking rights under the FMLA. Sanchez and Zaparoli bring claims under Indiana’s Wage Claim Statute for unpaid wages. 3. The Court should sever and drop Jurado, Sanchez, and Zaparoli from this case because they have been misjoined. Pursuant to Federal Rule of Civil Procedure 20(a), “[p]ersons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” 4. The claims asserted by Hernandez, Jurado, Sanchez, and Zaparoli do not arise out of the same transaction or occurrence. Each Plaintiff’s claims are discrete and separate. As discussed fully in Defendant’s Brief in Support of Motion to Sever and Drop Misjoined Parties and Partial Motion to Dismiss Complaint, each claim has its own unique facts, and the various claims will require the application of different laws and analysis of separate legal issues. 5. The Court is authorized under Federal Rule of Civil Procedure 21 to sever the claims against Riverside and proceed with them separately. Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, no just terms, add or drop a party. The court may also sever any claim against a party.”). USDC IN/ND case 1:17-cv-00160-TLS-SLC document 12 filed 05/22/17 page 2 of 4 7. Also, Hernandez’s Title VII discrimination and retaliation claims asserted in Counts I and II of the Complaint are time-barred and should be dismissed. As demonstrated by Exhibit A to the Complaint, Hernandez filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 25, 2016. Hernandez did not dual file her Charge with the Indiana Civil Rights Commission. The Charge was filed 266 days after her last complained of employment action, which was an allegation that she was forced to resign from employment with Riverside. Although Indiana is a deferral state, Hernandez did not file a complaint with a state or local agency, which is required to extend the 180 day deadline to the 300-day period time to file with the EEOC. Accordingly, Hernandez’s Title VII claims are time barred. WHEREFORE, for all of the foregoing reasons, Defendant, Riverside Mfg, LLC, respectfully requests this Court to grant its Motion to Sever and Drop Misjoined Parties and Partial Motion to Dismiss the Complaint. Respectfully submitted, ICE MILLER LLP /s/ Eileen P.H. Moore Mark W. Ford, Attorney No. 6924-49 Eileen P.H. Moore, Attorney No. 25957-49 Attorneys for Defendant, Riverside Mfg, Inc. ICE MILLER LLP One American Square, Suite 2900 Indianapolis, IN 46282-0200 Phone: (317) 236-2100 Fax: 236-2219 Mark.Ford@icemiller.com Eileen.Moore@icemiller.com USDC IN/ND case 1:17-cv-00160-TLS-SLC document 12 filed 05/22/17 page 3 of 4 CERTIFICATE OF SERVICE The undersigned hereby certifies on the 22 day of May, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. Patrick L. Proctor EILBACHER FLETECHER, LLP 803 S. Calhoun St., 4 th Floor Fort Wayne, IN 46802 (proctor@eflawyers.com) /s/ Eileen P.H. Moore Eileen Moore ICE MILLER LLP One American Square, Suite 2900 Indianapolis, Indiana 46282-0200 Direct: (317) 236-2260 I\11911145.3 USDC IN/ND case 1:17-cv-00160-TLS-SLC document 12 filed 05/22/17 page 4 of 4