Jeter v. Montgomery County

Decision Date19 March 2007
Docket NumberCivil Action No. 2:06cv1043-MHT.
Citation480 F.Supp.2d 1293
PartiesMary JETER, Plaintiff, v. MONTGOMERY COUNTY, Defendant.
CourtU.S. District Court — Middle District of Alabama

Priscilla Black Duncan, P.B. Duncan & Associates, LLC, Montgomery, AL, for Plaintiff.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Plaintiff Mary Jeter brings this lawsuit against defendant Montgomery County for denial of earned wages, retaliation, and race discrimination. Jeter brings overtime and retaliation claims under the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C. §§ 201-219, a race-discrimination claim under the equal protection clause of the Fourteenth Amendment as enforced through 42 U.S.C. § 1983, and a state-law claim for breach of contract. Now pending before the court are the county's motion to dismiss for failure to state a claim, Jeter's motion for leave to amend her complaint, and the county's motion to strike the exhibits Jeter filed in support of her response to the county's motion to dismiss. For the reasons that follow, the motion to strike will be denied, the motion for leave to amend will be granted, and the motion to dismiss will be granted in part and denied in part.

I. FACTS

The facts as alleged in Jeter's complaint are as follows. Beginning in June 2002, Jeter, an employee of the county youth facility, was assigned to the home-detention-verification program, which required her to place telephone calls during evening and weekend hours to verify the location of youths designated to home confinement Because of Jeter's after-hours assignment she worked more than 40 hours each week, but she did not receive overtime compensation. Jeter performed these overtime duties without overtime compensation for nearly four years and was never told that she was eligible for overtime pay. Jeter is black, and a white female employee who was assigned the same duties in Jeter's absence was paid overtime.

On January 31, 2006, Jeter filed a written claim with her employer. Shortly after Jeter's claim was forwarded to a county attorney, the director of the youth facility canceled the home-detention program and increased Jeter's workload. Jeter's superiors told her she made a mistake by asking for overtime and otherwise shunned her.

II. PROCEDURAL BACKGROUND

Jeter initially filed this action in state court, naming as defendants the Montgomery County Youth Facility and its director, Bruce Howell. The facility and its director removed the case to federal court and filed a motion to dismiss on grounds that the youth facility was not a suable entity and that Jeter had failed to a state a claim against Howell upon which relief could be granted. Jeter subsequently amended her complaint to name Montgomery County as the sole defendant, and this court denied the motion to dismiss. At that point, the county filed another motion to dismiss for failure to state a claim. Jeter filed a response that includes argument, supporting exhibits, and a second amended complaint with a motion for leave to file the same. The county opposes Jeter's motion for leave to amend her complaint a second time and additionally hasp moved to strike Jeter's exhibits. All three motions — to dismiss, to amend, and to strike — are now pending before the court.

DISCUSSION
A. Introduction

The court must first decide in what order it should decide the motions. Deciding them in the order they were filed would not necessarily be efficient or just. More specifically, the court's rulings on the motions to strike and for leave to amend would affect the merits of the motion to dismiss. Accordingly, the court will first rule on the motion to strike. Next, because the county's basis for its opposition to Jeter amending the complaint is that such amendment would be futile in light of its motion to dismiss, the court will consider the merits of the motion to dismiss against the facts and claims in the second amended complaint, and then decide both the motion to amend and motion to dismiss accordingly.

B. Motion to Strike

Jeter's response in opposition to the county's motion to dismiss contains several exhibits, and the county has moved to strike the exhibits. Jeter contends that the exhibits prove the county had notice of her claim and knows it is liable for overtime pay. The county argues that the exhibits constitute settlement negotiations inadmissible under the Federal Rules of Evidence and that materials outside the pleadings are not permitted at the motion-to-dismiss stage under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

1.

A motion to strike is governed by Rule 12(f) of the Federal Rules of Civil Procedure. Rule 12(f) provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" (emphasis added). Rule 7(a) of the Federal Rules of Civil Procedure provides that a "pleading" is only a "complaint," "answer," "reply to a counterclaim," "answer to a cross-claim," "third-party complaint," "third-party answer," "reply to an answer," or "reply to a third-party answer."

The terms of Rules 12(f) and 7(a) make clear that "[o]nly material included in a `pleading' may be subject of a motion to strike" and that "[m]otions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike." 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[2] (3d ed.2006). See also Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir.1995) (per curiam) (only the items listed in Rule 7(a) constitute pleadings); Lawhorn v. Atl. Refining Co., 299 F.2d 353, 357 (5th Cir.1962)1 (a motion to dismiss is not a pleading); 2 Moore, supra, § 7.02[1][b], at 7-7 ("A motion in any form cannot stand as a pleading.").

From Rules 12(f) and 7(a), it follows perforce that a response in opposition to a motion to dismiss is not a "pleading." Accordingly, the court will deny the county's motion to strike and will not strike the exhibits from Jeter's response. See Lowery v. Hoffman, 188 F.R.D. 651, 653 (M.D.Ala.1999) (Thompson, J.) ("as an initial matter, the motion to strike must be denied as to all non-pleadings").

2.

In its motion to strike, the county asks that in the alternative the court not consider the exhibits in ruling on its motion to dismiss. The court agrees not to consider the exhibits. Cf. Norman v. Southern Guar. Ins. Co., 191 F.Supp.2d 1321, 1328 (M.D.Ala.2002) (Thompson, J.) (in resolving the pending summary-judgment motion, the court will implicitly consider the improperly filed motion to strike as, instead, notice of objections to the testimony described in the motion).

When a party moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted and matters outside the pleading are presented in connection therewith, the court has two options.2 First, the court may, at its discretion, exclude the outside material and not consider it in reaching the merits of the motion. Jones v. Auto. Ins. Co. of Hartford, 917 F.2d 1528, 1532 (11th Cir.1990). Alternatively, the court may choose not to exclude the outside material, but then it must convert the motion into one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R.Civ.P. 12(b). See generally 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1366 (3d ed.2004).

Here, Jeter has submitted matters outside the pleading in support of her opposition to the county's Rule 12(b)(6) motion to dismiss. Rather than convert the motion into one for summary judgment, the court will exercise its discretion not to consider the exhibits and to rule on the merits of the Rule 12(b)(6) motion based on the pleading alone.

C. Motion for Leave to Amend Complaint
1.

The next question is whether Jeter may amend her first amended complaint. Rule 15(a) of the Federal Rules of Civil Procedure provides that, after a party has amended its pleading once as a matter of course, as was done here, subsequent amendments may occur only by leave of the court. However, the rule also provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). A plaintiff should generally be allowed to test his claim on the merits, but the liberal amendment policy prescribed by Rule 15 does not mean that leave will be granted in all cases. Indeed, in determining whether "justice so requires" that leave to amend be granted, district courts may consider such factors such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Andrx Pharms, Inc. v. Elan Corp., 421 F.3d 1227, 1236 (11th Cir.2005); Nolin v. Douglas County, 903 F.2d 1546, 1550 (11th Cir.1990), overruled on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994).

Here, the county does not argue that it would suffer any prejudice if leave to amend is granted, nor does it allege that Jeter has acted in bad faith. The county's only objection is that the amendment is futile because it would not defeat the county's pending motion to dismiss for failure to state a claim upon which relief can be granted. Although allowing the amendment may cause some delay in the proceedings, this slight delay is outweighed by the interest in the resolution of Jeter's claims on their merits to the extent her second amended complaint is a sufficient one. Furthermore, as Jeter points out, the county has not yet filed its answer to the first amended complaint. Accordingly, unless Jeter's amendments would be Mile, leave to amend will be granted.

In order to assess the county's futility argument, the court must hypothetically assess the merits of the county's motion...

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