Jackson v. Norfolk S. Ry. Co.
| Decision Date | 07 September 2021 |
| Docket Number | Civil Action 1:20-cv-00859-MLB-AJB |
| Parties | DAVIDA JACKSON, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
UNITED STATES MAGISTRATE JUDGE'S ORDER AND NON-FINAL REPORT AND RECOMMENDATION
Currently before the Court is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (“Motion to Dismiss”) and Plaintiff's First Motion for Extension of Time to File Response to Defendant's Motion to Dismiss Second Amended Complaint (“Motion for Extension”). [Docs. 31, 34]. For the reasons stated below, the Court DENIES the Motion for Extension and RECOMMENDS that the Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.
Plaintiff filed her counseled complaint on February 25, 2020. [Doc. 1]. On April 6, 2020, Plaintiff filed her first amended complaint, alleging a due process violation under the Georgia Constitution, invasion of privacy in violation of the Health Insurance Portability and Accountability Act of 1996, Pub. L No. 104-191, 110 Stat. 1936 (1996) (“HIPAA”), age discrimination under the Age Discrimination Employment Act 29 U.S.C. § 621 et seq., (“ADEA”), race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and intentional infliction of emotional distress (“IIED”). [Doc. 4 at 9-17].
Following service, Defendant moved to dismiss the amended complaint on August 24, 2020. [Doc. 15]. Plaintiff did not file a response. (See generally Dkt.). Instead, on September 24, 2020, Plaintiff filed a motion for leave to file a second amended complaint (“SAC”). [Doc. 18]. In the proposed SAC, Plaintiff asserted claims for violations of her due process rights, breach of contract, the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), race discrimination under Title VII, age discrimination under Title VII and the ADEA, and IIED. [Doc. 18-1 at 8-22].
On November 4, 2020, the Court denied without prejudice Plaintiff's motion for leave to file a second amended complaint. [Doc. 21]. The Court noted that Plaintiff had provided no justification for seeking to amend her complaint six months after her initial filing and did not file a reply brief providing any such justification. [Id. at 6]. The Court permitted Plaintiff to file a second motion for leave providing an explanation for her delay within 21 days. [Id. at 7]. On November 25, 2020, Plaintiff filed her second motion for leave and a motion or an extension of time to respond to Defendant's motion to dismiss. [Docs. 22, 23]. Defendant filed its responses on December 29, 2020. [Docs. 25, 26].
On January 25, 2021, the Court granted Plaintiff's Motion for Leave to File a Second Amended Complaint and recommended that the motion to dismiss be denied as moot. [Docs. 27, 28]. The Court's recommendation was adopted by the District Judge on February 12, 2021. [Doc. 32].
On February 4, 2021, Defendant filed the Motion to Dismiss the SAC currently under consideration. [Doc. 31]. Plaintiff did not file a timely response. (See generally Dkt.). Instead, on March 15, 2021, Plaintiff filed the Motion for Extension before the Court. [Doc. 34]. The Court addresses the Motion for Extension first, and then proceeds to discuss the Motion to Dismiss the SAC.
In her Motion for Extension, Plaintiff claims that when she was granted leave to file the SAC on February 12, 2021, her request for more time to respond to Defendant's motion to dismiss the first amended complaint was thereby rendered moot. [Doc. 34 at 2-3]. Thus, she contends, Defendant's Motion to Dismiss the SAC filed on February 4, 2021, even though the District Court had not adopted Plaintiff's Second Amended Complaint as the operative complaint in this matter. [Id.]. She argues that the Motion to Dismiss indicates that it contains information that Defendant opposed in Plaintiff's First Amended complaint, which was rendered moot by the adoption of the Report and Recommendation. [Id. at 3-4]. Plaintiff argues that this gave the appearance that the Motion to Dismiss was premature. [Id. at 4].
She contends that her counsel was made aware of the Motion to Dismiss on March 4, 2021 by his legal assistant who had delayed informing him of it because she believed the Court's Order adopting Plaintiff's SAC was the most recent and pending document and she did not see the February 4, 2021 Motion to Dismiss. [Id.]. Plaintiff argues that granting the Motion for Extension will not prejudice Defendant and was not made for delay or dilatory purpose but in good faith to preserve a meritorious complaint. [Id. at 5].
Plaintiff attached the affidavit of Leigh McMutry, who is the Legal Assistant for Plaintiff's counsel. [See Doc. 34-2]. She avers that counsel closed his law office temporarily in March 2020 and she found other employment but was still able to work on a reduced schedule, Mondays and some evenings, and at reduced pay. [Id. at 1-2]. McMutry states that counsel relies on her for all of his electronic communication and because he is not comfortable with technology, the office is very dependent on U.S. Mail. [Id. at 2]. She avers that the Motion to Dismiss did not come via U.S. mail and was somehow overlooked or deleted by her electronically. [Id.]. McMutry avers that she believed the undersigned's R&R was the controlling document and, after receiving it, expected to see objections from Defendant. [Id. at 3]. When she did not see any objections, she avers that she waited for a response from Defendant. [Id.]. On March 8, she avers that she saw the Motion to Dismiss was submitted to the Judge but did not realize it had been filed on February 4, 2021. [Id.]. After further investigation, she discovered on March 13, 2021 that it had been filed on February 4, 2021 and brought it to counsel's attention that day. [Id.].
Defendant did not file a response. (See generally Dkt.).[1]
The Court finds that the Motion for Extension should be DENIED. The Court notes first that it granted Plaintiff's Second Motion for Leave on January 22, 2021. [Doc. 27]. That filing made clear that the undersigned was able to rule on the Second Motion for Leave by Order, [id. at 1 n.1], and that, having granted the motion, “Plaintiff's Second Amended Complaint is therefore now the operative pleading in this matter, ” [id. at 12]. Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint, filed on February 4, 2021, [Doc. 31], was therefore not premature. While the Court did issue a document titled Non-Final Report and Recommendation on January 25, 2021, mistakenly also labeled as an Order, that document itself states that the Second Motion for Leave has been granted and, “[a]s a result, Plaintiff's second amended complaint . . . is now the operative pleading in this action.” [Doc. 28 at 3].
Under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, the district court may, for good cause, extend the time for filing a motion after the deadline has expired if the untimely filing was due to excusable neglect, and that in evaluating “excusable neglect” under this rule, courts consider “(1) the danger of prejudice to the nonmovant; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.” Ashmore v. Sec'y, Dept. of Transp., 503 Fed.Appx. 683, 685-86 (11th Cir. Jan. 3, 2013) (per curiam). The question of whether a party's neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993); see also Fisher v. Office of State Attorney 13th Judicial Cir. Fla., 162 Fed.Appx. 937, 940 (11th Cir. Jan. 19, 2006) (per curiam). “The responsibility for the error falls on the attorney regardless of whether the error was made by an attorney or a paralegal.” Pincay v. Andrews, 389 F.3d 853, 856 (9th Cir. 2004).
Reviewing the procedural history of this case, the Court finds that the balance of equities weighs against granting the Motion for Extension. Pioneer Inv. Servs. Co., 507 U.S. at 395; Fisher, 162 Fed.Appx. at 940. In particular, the Court notes that Plaintiff failed to timely respond to Defendant's previous motion to dismiss. [See Doc. 15; see generally Dkt.]. Indeed, a month after Defendant had filed its Motion to Dismiss, Plaintiff instead filed a Motion for Leave to file a Second Amended Complaint. [Doc. 18]. The Court denied that Motion on the basis that the motion itself provided no justification for an amendment and Plaintiff did not file a reply in support of it. [See Doc. 21 at 6]. Nevertheless, the Court granted Plaintiff the opportunity to file second motion for leave providing an explanation for her delay in moving to leave and failing to respond to Defendant's Motion to Dismiss. [Id. at 7].
Plaintiff filed her Second Motion for Leave to File a Second Amended Complaint on November 25, 2020. [Doc. 23]. In granting that motion, the Court noted Plaintiff's argument that she had misunderstood her Second Amended Complaint to be her “free” amendment under the Local Rules and did not consider Plaintiff's Motion to Dismiss to be a responsive pleading. [Doc. 27 at 4]. In an attached affidavit, Plaintiff's counsel explained that he had limited staff because his business was impacted by COVID-19 although his paralegal made herself available to him on an “as needed” basis. [Id. at 4-5; see also Doc. 23-1]. Counsel also explained that he and his son both had serious health conditions. [Doc. 23-1]. Based on these arguments and...
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