Buser v. Southern Food Service, Inc., No. 1:98-CV00657.

• Court: United States District Courts. 4th Circuit. Middle District of North Carolina
• Writing for the Court: Beaty
• Citation: 73 F.Supp.2d 556
• Parties: Charlotte BUSER, Plaintiff, v. SOUTHERN FOOD SERVICE, INC., and James Nussbaum, Defendants.
• Decision Date: 11 August 1999
• Docket Number: No. 1:98-CV00657.

73 F.Supp.2d 556 Charlotte BUSER, Plaintiff,
v.
SOUTHERN FOOD SERVICE, INC., and James Nussbaum, Defendants. No. 1:98-CV00657. United States District Court, M.D. North Carolina. August 11, 1999.

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Paul E. Martin, Greensboro, NC, for Plaintiff.

Melissa Robin Davis, Greensboro, NC, for Defendants.

MEMORANDUM OPINION

BEATY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendants Southern Food Services, Inc.'s ("Southern" or "the Company"), and James Nussbaum's ("Nussbaum") Motion to Strike and Dismiss [Document # 6]. Plaintiff Charlotte Buser ("Buser") has filed a Brief in Opposition to Defendants' Motion to Strike and Dismiss [Document # 10]. For the reasons stated herein, Southern's and Nussbaum's Motion to Strike and Dismiss is granted in part and denied in part.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

Southern is a corporation licensed by and doing business in North Carolina. (Compl. ¶ 4.) At all relevant times, Nussbaum served as Vice President of Southern. (Id. at ¶ 5.) Buser was employed by Southern from July 1985 through September 1996. (Id. at ¶ 3.) This action arose out of the circumstances surrounding her discharge from the Company.

In May 1994 Buser was diagnosed as having fibromyalgia, a muscle disorder. (Id. at ¶ 6.) At the time of this diagnosis, she worked under the direct supervision of Nussbaum. (Id. at ¶ 23.) Buser's condition worsened over time. (Id. at ¶ 6.) On September 24, 1996, based upon her doctor's recommendation, Buser requested medical leave pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id.) Her request was granted by her then immediate supervisor, Randy Newton ("Newton"). (Id. at ¶ 7.) Sometime prior to that date, Newton had been made aware of her illness. (Id.)

On September 25, 1996, Nussbaum telephoned Buser and indicated to her that Southern wanted her to continue working. (Id. at ¶ 8.) He also suggested rearranging her schedule to accommodate her health problems. (Id.) In response, Buser informed Nussbaum that, based upon her doctor's recommendation, she would not be able to return to the Company as requested and would, instead, have to temporarily cease employment. (Id.) On September 27, 1996, Nussbaum again telephoned Buser and demanded that she return to work. (Id. at ¶¶ 9-10.) After she explained to him that her medical condition prevented her from doing so, Nussbaum discharged Buser from Southern. (Id. at ¶ 11.)

After Nussbaum terminated Buser's employment with the Company, the United States Department of Labor ("USDOL")— presumably pursuant to a complaint filed by Buser — investigated whether Southern, in dismissing Buser, violated provisions of the FMLA. (Id. at ¶ 21.) Buser also alleges that on April 10, 1997, the USDOL informed Southern—through its legal representative— of its view that the Company had, indeed, violated the FMLA. (Id.) Nonetheless, Nussbaum, on or before April 21, 1997, refused to rehire Buser. (Id. at ¶ 22.)

Buser alleges that at or prior to the time of her discharge from the Company, Defendants knew or should have known that (1) Buser's husband suffered from a spinal cord disease, was disabled, was confined to a wheelchair, and was incapable of working, (2) her Southern income was important to her, (3) the loss of her Southern income would aggravate her muscle disorder and cause her stress, (4) the loss of her Southern income would cause her to suffer severe emotional distress, and (5) Buser's only other family income was her husband's

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Social Security receipts. (Id. at ¶¶ 13, 23.)

On July 28, 1998, Buser initiated the present action by filing her Complaint [Document # 1]. Among other things, she alleged violations of the FMLA and asserted state causes of action for discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress. On September 29, 1998, Defendants filed the motion now before this Court. For the reasons stated herein, the Court will grant in part and deny in part Defendants' Motion to Strike and Dismiss.

III. STANDARD OF REVIEW

With respect to a motion to dismiss for failure to state a claim upon which relief can be granted, dismissals are allowed only in very limited circumstances. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). Generally, a court should not dismiss a complaint for failure to state a claim "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). In making this determination, a court must view the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 849 (1995).

IV. MOTION TO STRIKE

Defendants' motion to strike is directed at paragraphs 21, 22, and 27 of Buser's Complaint. Pursuant to paragraph 21, Buser alleges that (1) after Nussbaum terminated Buser's employment with the Company, the USDOL investigated whether Southern, in dismissing Buser, violated provisions of the FMLA and (2) on April 10, 1997, the USDOL informed Southern— through its legal representative — of its view that the Company had, indeed, violated the FMLA. (Compl. at ¶ 21.) In paragraph 22, Buser asserts that Nussbaum, on or before April 21, 1997, refused to rehire her. (Id. at ¶ 22.) Paragraph 27 includes an allegation that Nussbaum's refusal to rehire Buser was in retaliation for Buser's filing of a USDOL complaint. (Id. at ¶ 27.)² For the foregoing reasons, Defendants motion to strike is denied.

Pursuant to the Federal Rules of Civil Procedure, in certain circumstances a "court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "[T]he function of a [Rule] 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). But despite this beneficial purpose, such motions "are viewed with disfavor and are infrequently granted." Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977).

Defendants set forth two separate grounds for their motion to strike paragraphs 21, 22, and 27 of the Complaint. First, they contend that the Defendants' decision to forgo rehiring Buser was "a term of settlement in negotiations between [D]efendants, [Buser,] and the [USDOL] in an early stage of this litigation." (Br. in Supp. of Defs.' Mot. to Strike and Dismiss at 7.) As a result, Defendants, citing Rule 408 of the Federal Rules of Evidence,³ maintain that such information would be inadmissible as evidence of any liability on

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the part of Defendants. (Id. at 7-8.). Second, Defendants argue that, to the extent Buser seeks to rely on the USDOL investigation as imposing liability upon Defendants, she would be precluded from doing so because the USDOL's determinations and/or settlement proposals do not have any preclusive effect. (Id. at 8-9.)

It is not clear to the Court, at this stage in the litigation, as to what purpose Buser intends to use (or attempt to use) any evidence which may be developed relating to the USDOL and its alleged investigation. However, to the extent that motions to strike are generally disfavored and strictly construed, the Court in its discretion declines at this time to strike paragraphs 21, 22, and 27 of the Complaint. Defendants' motion to strike is denied.

V. MOTION TO DISMISS

Having concluded that Defendants' motion to strike is denied, the Court will now address Defendants' motion to dismiss. As noted, Buser alleges violations of the FMLA and asserts state causes of action for discharge in violation of public policy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Court notes, however, that Buser has not labeled each of her eight causes of action. Nor does she clearly indicate in every instance the specific tort or other claim asserted. These failings notwithstanding, the Court has been able to identify the following claims correlating to each of Buser's eight causes of action: (1) violation of the FMLA; (2) discharge in violation of public policy; (3) discharge in violation of public policy (seeking punitive damages); (4)-(5) intentional infliction of emotional distress;⁴ (6) intentional infliction of emotional distress (seeking punitive damages); (7) negligent infliction of emotional distress; (8) negligent infliction of emotional distress (seeking punitive damages).

Defendants' motion to dismiss is directed at all claims as they relate to both Defendants, with the following exception: Defendants do not at this time seek dismissal of Buser's first cause of action (violation of the FMLA) to the extent that it is asserted against the Company. This Court will address the claims in the order presented in the Complaint and, since both Defendants challenge Buser's intentional and negligent infliction of emotional distress causes of action on similar grounds, the Court will analyze those claims together.

A. Violation of the FMLA (as asserted against Nussbaum individually)

Buser's first cause of action contains allegations that both Defendants separately violated provisions of the FMLA. (Compl. ¶¶ 6-14.) Specifically, she asserts that Southern, through Nussbaum, discharged her despite the fact that she was on medical leave. (Id. at ¶ 11.) With their motion, Defendants contend that her claim should be dismissed to the extent that it is asserted against Nussbaum individually because he cannot be considered an...