Lowden v. William M. Mercer, Inc., Civ. A. No. 94-11351-RCL.

• Decision Date: 17 October 1995
• Docket Number: Civ. A. No. 94-11351-RCL.
• Citation: 903 F. Supp. 212
• Parties: Beverly C. LOWDEN, Plaintiff, v. WILLIAM M. MERCER, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

903 F. Supp. 212

Beverly C. LOWDEN, Plaintiff, v. WILLIAM M. MERCER, INC., Defendant.

Civ. A. No. 94-11351-RCL.

United States District Court, D. Massachusetts.

October 17, 1995.

COPYRIGHT MATERIAL OMITTED

Matthew Cobb, Law Firm of Matthew Cobb, Boston, MA, for Plaintiff.

Ilene Robinson, Louis A. Rodrigues, Sullivan & Worcester, Boston, MA, for Defendant.

LINDSAY, District Judge.

Report and Recommendation ACCEPTED.

REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS (DOCKET ENTRY # 3); DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND FOR SANCTIONS (DOCKET ENTRY # 6); PLAINTIFF'S CROSS-MOTION FOR RULE 11 SANCTIONS (DOCKET ENTRY # 8)

September 29, 1995

BOWLER, United States Magistrate Judge.

Pending before this court in the above styled civil rights action are the following motions: (1) a motion to dismiss the original complaint filed by defendant William M. Mercer, Inc. ("Mercer"), a company engaged in providing consulting services with respect to employee benefit and welfare plans (Docket Entry # 3); (2) Mercer's motion to dismiss the first amended complaint which plaintiff Beverly C. Lowden ("Lowden") filed as a matter of right after Mercer filed the motion to dismiss the original complaint (Docket Entry # 6); (3) Mercer's motion for sanctions due to Lowden's filing the first amended complaint without responding to Mercer's motion to dismiss the original complaint (Docket Entry # 6); and (4) Lowden's motion for sanctions due to Mercer filing the purportedly frivolous motion for sanctions (Docket Entry # 8). After conducting a hearing, this court took the motions (Docket Entry ## 3, 6 & 8) under advisement. (Docket Entry # 15).

PROCEDURAL BACKGROUND

Lowden, a former female employee of Mercer above the age of 40, originally filed this action on the basis of a violation of: (1) 42 U.S.C. § 2000(e) et seq. ("Title VII") (Count I); (2) 29 U.S.C. § 206(d) ("the Equal Pay Act") (Count II); (3) 29 U.S.C. § 621 et seq., also known as the Age Discrimination in Employment Act of 1967 ("ADEA") (Count III); (4) 42 U.S.C. § 1986 ("section 1986") (Count IV); (5) Massachusetts General Laws chapter 151B ("chapter 151B") (Count V); and (6) section 11H and 11I of Massachusetts General Laws chapter 12 ("chapter 12") (Count VI). (Docket Entry # 1). In lieu of filing an answer, Mercer filed a motion to dismiss the complaint (Docket Entry # 3) together with a supporting memorandum (Docket Entry # 4). Lowden then filed a first amended complaint (No Docket Entry No. Assigned) which Mercer also moves to dismiss (Docket Entry # 6).

The first amended complaint, with minor modifications, tracks the language of the original complaint with respect to the factual allegations. The first amended complaint also raises the same six causes of action as the original complaint but adds certain additional bases to the causes of action in counts IV and VI.

Mercer's motion to dismiss the first amended complaint asserts the same three arguments Mercer employed to seek dismissal of the original complaint. Therefore, Mercer incorporates by reference a number of the arguments from its motion to dismiss the original complaint into its motion to dismiss the first amended complaint. In so doing, Mercer specifically identifies the pages and the arguments it wishes to incorporate by reference.

Lowden objects to Mercer's use of Rule 10, Fed.R.Civ.P. ("Rule 10"), as a means to incorporate Mercer's previous arguments. Due to Lowden's procedural objection, Lowden fails to address on a substantive basis any of the arguments which Mercer incorporates by reference into its later pleading. Rather, Lowden confines its substantive objections to the arguments Mercer raises for the first time in the memorandum in support of the motion to dismiss the first amended complaint.

Lowden reasons that she could amend the original complaint as a matter of right prior to Mercer filing an answer. Further, because an amended complaint supersedes an original complaint, Lowden submits that the original complaint is withdrawn and, therefore, motions and supporting memoranda addressing the original complaint are also withdrawn. Consequently, such papers do not constitute "pleadings" within the meaning of Rule 10's language allowing incorporation by reference.

It is well settled that an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967) (amended complaint supersedes original which is thereafter treated as nonexistent); Miesowicz v. Essex Group, Inc., 1994 WL 260645 at *2 (D.N.H. Apr. 12, 1994). It is also true that a plaintiff may amend the original complaint "once as a matter of course at any time before a responsive pleading is served." Fed.R.Civ.P. 15(a). A motion to dismiss is not a "responsive pleading" within the meaning of Rule 15(a), Fed. R.Civ.P. See Kuehl v. FDIC, 8 F.3d 905, 907 n. 4 (1st Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1545, 128 L.Ed.2d 196 (1994). Thus, Lowden acted properly in filing a first amended complaint which thereby operates to supersede the original complaint.

Rule 10 provides that, "Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion." Fed. R.Civ.P. 10(c). The later pleading must "specifically identify which portions of the prior pleading are adopted therein." Federal National Mortgage Association v. Cobb, 738 F.Supp. 1220, 1227 (N.D.Ind.1990). Mercer's incorporation meets this standard. Moreover, it is appropriate to incorporate by reference an argument made in a motion to dismiss an original complaint despite the subsequent amendment of the complaint. See, e.g., Macklin v. Butler, 553 F.2d 525, 528 (7th Cir.1977). Lowden's contention that it is improper to consider the arguments which Mercer incorporates by reference into its motion to dismiss the first amended complaint is therefore without merit.

Like Lowden, Mercer also raises a procedural argument. Mercer maintains that the original and first amended complaints violate Rule 8(a) ("Rule 8"), Fed. R.Civ.P.¹ Fed.R.Civ.P. 8. Rule 8 requires the pleader to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Notice pleading under Rule 8 ordinarily requires a pleader "to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Corporation, 851 F.2d 513, 515 (1st Cir.1988); see generally Boston & Maine Corporation v. Town of Hampton, 987 F.2d 855, 863-865 (1st Cir.1993); Reed Paper Company v. Proctor & Gamble Distributing Company, 807 F.Supp. 840, 849 (D.Me.1992).

While the allegations in the first amended complaint span 24 pages, they are not so verbose, repetitive or confusing so as to prevent Mercer from understanding the basis of the claims in order to frame a response. While such a response may take greater effort due to the length and the detail of the allegations, the allegations are not repetitive and are phrased in concise sentences. Lowden expressly identifies particular dates and the individuals involved in the majority of the purported incidents. Further, the facts alleged are not complex and involve a relatively small number of individuals at Mercer. Cf. Newman v. Commonwealth of Massachusetts, 115 F.R.D. 341, 344 (D.Mass.1987) (disorganized, verbose and argumentative complaint with 70 pages of attached exhibits dismissed under Rule 8). It is not unduly burdensome for Mercer to question of these individuals in order to devise an appropriate answer. Mindful of the length and the detail of the factual allegations, however, this court will enlarge the time to file the answer up to and including October 30, 1995.

The remaining arguments Mercer propounds involve the merits of counts IV and VI. This court therefore turns to the facts assuming the truth of the facts alleged in the first amended complaint for purposes of the motion to dismiss. Dismissal is appropriate if, accepting the truth of the factual allegations and drawing all reasonable inferences in Lowden's favor, Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993), Lowden "`cannot recover on any viable theory.'" Garita Hotel, Ltd. v. Ponce Federal Bank, 958 F.2d 15, 17 (1st Cir.1992) (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)).

FACTUAL BACKGROUND

Lowden began work at Mercer in September 1982 as a consultant in the area of compiling pension data. She was 43 years old at the time. Her prior experience included actuarial positions at another company for a 20 year period.

During the first three years of her tenure at Mercer, Lowden became a management consultant to various clients including a number of financial institutions such as State Street Bank. Although Lowden acquired the position of an associate by 1983, Mercer did not promote Lowden to the position of a principal despite a policy of promoting all associates to the position of a principal within a three year period. Mercer, however, promoted a number of similarly situated male employees from associate to principal positions.

In June 1985 John Regan III ("Regan") became the head of a newly merged office which included Lowden. Lowden was the only female actuary in the newly created office. Regan proceeded to diminish Lowden's responsibilities. For example, Regan refused to give Lowden input into decisions to award raises to Lowden's subordinates. He also complained that Lowden was not an "enrolled actuary"² although he did not make similar comments about male actuaries lacking this qualification.

In 1985 Lowden solicited and obtained State Street Bank ("State Street") as a client for a flexible benefits project worth an estimated $350,000 in revenues. Upon obtaining this business for Mercer, Mercer did not promote Lowden to the position of a principal notwithstanding a policy of awarding such...