Opinion
Civil No. 3:04-CV-0276-H.
September 14, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Financial Computer Software's Fed.R.Civ.P. 12(b)(6) Motion to Dismiss, filed July 15, 2004; Plaintiff's Response, filed August 4, 2004; and Defendant's Reply, filed August 16, 2004. Also before the Court is Plaintiff's Motion for Leave to Join Additional Parties, Amend Pleadings, and Amend Scheduling Order, filed August 31, 2004, and Defendant's Response, filed September 7, 2004.
I. Background
Plaintiff Thomas Schutze filed suit on January 14, 2004, in the 101st District Court of Dallas County, Texas alleging claims under the Texas Commission on Human Rights Act and Texas common law. On February 9, 2004, Defendant removed the action to this Court. On July 1, 2004, Plaintiff amended his original complaint adding three federal employment statute violations. (Pl.'s First Am. Compl. ¶¶ 28-73.) The case is currently scheduled for trial on the March 2005 docket. Defendant moves to dismiss two of Plaintiff's eleven claims: the Family Medical Leave Act ("FLMA") claim and the common law wrongful termination claim. (Def.'s Mot. at 1, 2, 4.) Plaintiff moves to join a recently discovered defendant, amend his pleadings to allege new facts, and amend the March 2, 2004, Scheduling Order to enlarge the deadline for filing amended pleadings. (Pl.'s Mot. at 1.) The Court addresses Plaintiff's Motion first as the rulings will impact the Court's analysis of Defendant's Motion.
II. Plaintiff's Motion
A. Leave to Join Additional Parties
Defendant does not oppose the joining of additional parties. Accordingly, Plaintiff is GRANTED leave to join additional parties.
B. Leave to Amend Pleadings
Federal Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." See FED. R. CIV. P. 15(a). Notwithstanding Rule 15(a)'s liberal standard for granting leave to amend, the Court considers a variety of factors when leave to amend is requested. See Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 566 (5th Cir. 2003). Factors the Court considers are "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, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff's leave to amend the pleadings survives the Foman, 371 U.S. at 182 analysis. The deadline for amending pleadings was August 30, 2004. (Scheduling Order at 2.) It does not appear that any undue delay will result from granting Plaintiff's leave to amend pleading. Nothing in the record suggests bad faith or dilatory motive on the part of the Plaintiff. If anything, Plaintiff's motive in requesting leave is to cure pleading defects highlighted by Defendant's Motion to Dismiss. The proposed pleading, Plaintiff's Second Amended Complaint, can hardly be characterized as a "repeated failure to cure deficiencies by amendments previously allowed." The previous amendment was made to comply with Defendant's removal of the suit wherein Defendant averred that at least two claims are governed by federal employment statutes. (Notice of Removal at 3-4.) The Second Amended Complaint will not unduly prejudice the Defendant; Plaintiff does not assert new or different causes of action, but rather alleges a slightly different set of facts. See discussion at Section II.A. and B. below. Plaintiff's amended complaint, is not a complete surprise to Defendant; it merely alters alleged facts: the very same facts upon which Defendant bases its Rule 12(b)(6) Motion.
The Court now turns to Defendant's arguments opposing leave to amend. Defendant argues that leave to amend should be denied in this case, because Plaintiff's proposed amendments are futile. (Def.'s Resp. at 1.) This Court has previously held that an examination of futility requires the Court to explore the results of the Defendant's Motion to Dismiss under the assumption that the Second Amended Complaint is in force at this time. Douglas-Peters v. Siemens Energy and Automation, Inc., No. Civ. 3:03-CV-240-H, 2003 WL 21698724 (N.D.Tex. July 8, 2003). Employing the Douglas-Peters approach, the Court finds that Plaintiff's proposed Second Amended Complaint is not "futile." See discussion at Section II.A. and B. below. For the reasons above, Plaintiff's leave to amend the pleadings, is GRANTED.
C. Leave to Amend Scheduling Order
Plaintiff requests leave to amend the Scheduling Order in one respect: to change the deadline for filing amended pleadings. So that Plaintiff may properly formulate his complaint consistent with the Court's dismissal of the FMLA claim, and granting of leave to join additional parties, the Scheduling Order shall be amended. The Court GRANTS Plaintiff leave to amend scheduling order.
II. Defendant's Motion to Dismiss
Applying the Douglas-Peters approach, the Court rules on Defendant's Motion to Dismiss in light of Plaintiff's Second Amended Complaint. Douglas-Peters v. Siemens Energy and Automation, Inc., No. Civ. 3:03-CV-240-H, 2003 WL 21698724 (N.D.Tex. July 8, 2003). When ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must "liberally construe the complaint in favor of the plaintiff and assume the truth of all pleaded facts." Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir. 2002) ( citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). The Court addresses each of Defendant's arguments with this standard in mind.
In the instant case, Defendant seeks to dismiss two of Plaintiff's eleven claims: Plaintiff's FMLA and common law wrongful termination claims. (Def.'s Mot. at 2, 4.) Defendant argues that: (1) Plaintiff's FMLA claim must be dismissed because Plaintiff does not meet the eligibility requirements to be covered under the act (Def.'s Mot. at 2.); and (2) Plaintiff's claim for wrongful termination must be dismissed because Plaintiff (a) was an at will employee under Texas law (Def.'s Mot. at 4.), and (b) fails to allege the necessary elements to establish such a claim. (Def.'s Mot. at 5,6.)
Although Plaintiff does not classify his claim as a Sabine Pilot exception to the at will doctrine, Sabine Pilot Service, Inc. v. Hanck, 687 S.W.2d 733, 735 (Tex. 1985), Defendant acknowledges the claim as such and apparently abandons its at will argument. The Court dispenses with addressing this argument.
A. FMLA Claim
Plaintiff's proposed Second Amended Complaint is identical to his First Amended Complaint with respect to the FLMA claim. (Pl.'s First Am. Compl. ¶¶ 48-49; Pl.'s Second Am. Compl. ¶¶ 51-52.) Between February 25, 2002 and April 2002 Plaintiff was contracted by Defendant as a consultant. (Pl.'s First Am. Compl. ¶¶ 4-5; Pl.'s Second Am. Compl. ¶¶ 6-7.) In April 2002, Defendant offered, and Plaintiff accepted, full time employment with Defendant. (Pl.'s First Am. Compl. ¶ 5; Pl.'s Second Am. Compl. ¶ 7.) Less than eight months later, on November 4, 2002, Defendant terminated Plaintiff's employment. (Pl.'s First Am. Compl. ¶ 8; Pl.'s Second Am. Compl. ¶ 10.)
Defendant argues that Plaintiff fails to qualify as an eligible employee under the FMLA and therefore cannot establish a prima facie FMLA case under 29 U.S.C. § 2615(a). (Def.'s Mot. at 2-4.) As a threshold matter, to assert a FMLA claim, Plaintiff must be a member of a protected class. See 29 U.S.C. §§ 2601- 2654. The FMLA covers eligible employees. 29 U.S.C. § 2611(1)(A). "The term 'eligible employee' means an employee who has been employed — (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12 month period." Id.
Although Plaintiff's pleadings admit that Plaintiff was employed by Defendant for less than the requisite twelve months, Plaintiff argues that he would have qualified as an FMLA eligible employee but for Defendant's termination of Plaintiff. Plaintiff's argument lacks merit. The FMLA contains nothing in the way of an exception to the twelve month requirement. See 29 U.S.C. §§ 2601- 2654. Congress' "clear statutory prerequisites for bringing an FMLA claim . . . did not provide for waiver of the minimum eligibility requirements when an employer has taken some action that allegedly precludes the employee from becoming statutorily eligible for protection under the Act." Brown v. DaimlerChrysler Corp., No. CIV. A. 3:99-CV-1286-D, 1999 WL 766021 at *2 (N.D. Tex. Sept. 24, 1999). Accordingly, Defendant's Motion to Dismiss Plaintiff's FLMA claim is GRANTED. B. Wrongful Termination for Refusal to Perform an Illegal Act Claim
Defendant's Motion to Dismiss asserts that Plaintiff was not requested to perform illegal acts (Def.'s Mot. at 5.) and did not refuse to participate in allegedly illegal acts. (Def.'s Mot. at 6.) Defendant's Response asserts futility of the proposed amendment as providing sufficient ground to deny leave. (Def.'s Resp. at 1-2.) Specifically, Defendant argues that "Schutze still does not allege that he did not engage in the alleged illegal activity, nor does he provide anything more than conclusory allegations that the alleged requested actions were illegal." ( Id. at 2.) Plaintiff's proposed Second Amended Complaint alleges that he was asked to "use unlicensed computer software during the time of Plaintiff's employment with [Defendant]. Plaintiff was told to use unlicensed software. Plaintiff refused to use unlicensed software or work on any computer which operated with unlicenced software." (Pl.'s Second Am. Compl. ¶ 24.) Plaintiff's proposed amended complaint therefore cures the pleading defect raised by the Defendant. Plaintiff's proposed Second Amended Complaint is not a "futile" amendment and is sufficient to survive Defendant's Motion to Dismiss. Plaintiff is GRANTED leave to file the Second Amended Complaint and Defendant's Motion to Dismiss Plaintiff's wrongful termination claim for allegedly refusing to commit illegal acts is DENIED as MOOT.
Defendant argues that Plaintiff is required to "plead specific facts, not mere conclusory allegations." (Def.'s Mot. at 5 (citing Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).) However, "imposing the [a] heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions [such as Rule 9(b)]." Id. As Plaintiff is not raising any fraud claims, the specificity requirement does not apply.
IV. Conclusion
Defendant Financial Computer Software's Motion to Dismiss is DENIED in part and GRANTED in part. Specifically, Defendant's Motion to Dismiss is DENIED as to Plaintiff's common law wrongful termination claim and Defendant's Motion to Dismiss is GRANTED as to Plaintiff's FMLA claim. Plaintiff's FMLA claim is hereby DISMISSED.
Plaintiff's Motion for Leave to Join Additional Parties, Amend Pleadings, and Amend Scheduling Order is GRANTED. Particularly, Plaintiff is GRANTED leave to join additional Parties and Plaintiff is GRANTED leave to file its Second Amended Complaint without the FMLA claim. Plaintiff's request to amend scheduling order is GRANTED.
The March 2, 2004 Scheduling Order is amended as follows: Motions to amend the pleadings must be filed by noon, November 1, 2004. Plaintiff is DIRECTED to provide the Clerk with his Second Amended Complaint prepared in accordance with this opinion and Local Rule 15.1. The Clerk is DIRECTED to file a copy of the Second Amended Complaint.
SO ORDERED.