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Pugh v. Baker

United States District Court, S.D. Georgia, Brunswick Division

January 23, 2019

SHERETA D. PUGH, Plaintiff,
v.
MARSHALL BAKER; and JKS&K, INC. d/b/a MCDONALD'S, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         This is an action arising under Title VII of the Civil Rights Act of 1964 in which Plaintiff alleges Marshall Baker (“Mr. Baker”) sexually harassed her from December 2016 to April 2017 while she was employed by Defendant JKS&K, Inc. d/b/a McDonald's (“JKS&K”). Docs. 1, 4.

         For the following reasons, the Court GRANTS Plaintiff leave to proceed in forma pauperis, doc. 2, GRANTS Plaintiff's request for leave to file her proposed Second Amended Complaint, docs. 9, 14, ORDERS Plaintiff to file an executed copy of her Second Amended Complaint within seven days of this Order, DENIES as moot the Motion to Stay Discovery, doc. 25, and DIRECTS the United States Marshal to perfect service on Mr. Baker and Defendant JKS&K once Plaintiff has filed an executed copy of her Second Amended Complaint. Additionally, I RECOMMEND that the Court DENY as moot the Motion to Dismiss, doc. 5, as well as the various “renewed” Motions to Dismiss, docs. 12, 21, 23.

         BACKGROUND

         On May 9, 2018, Plaintiff, proceeding pro se, filed her Complaint against Marshall Baker and McDonald's and moved to proceed in forma pauperis. Docs. 1, 2. Five days later, on May 14, 2018, Plaintiff, still proceeding pro se, filed an Amended Complaint. Doc. 4. In her Amended Complaint, Plaintiff drew an “X” over Marshall Baker's name and added JKS&K as a named Defendant.[1] Id. at 2. Plaintiff explained that she amended her Complaint because she “put the wrong defendant['s] information.” Id. at 11. Plaintiff wrote that, although Mr. Baker allegedly sexually harassed her, she is “suing the company.” Id. Plaintiff's initial Complaint and her Amended Complaint contain very few facts about her claim. See Doc. 1 (stating that the claim is brought under Title VII and “Sexual Harassment, ” identifying the dates of the alleged conduct, and setting forth dates of the EEOC charge and right-to-sue letter); Doc. 4 (adding that Mr. Baker committed the relevant conduct, Plaintiff felt embarrassed that she had to experienced Mr. Baker's conduct, Plaintiff was afraid of losing her job, and Plaintiff was forced to “work in an uncomfortable environment” while Mr. Baker was present).

         On May 30, 2018, Mr. Baker and JKS&K moved by special appearance to dismiss Plaintiff's claims with prejudice, arguing Plaintiff failed to perfect service of process and failed to state a claim upon which relief could be granted.[2] Doc. 5. Although Plaintiff dropped Mr. Baker from the suit when she filed her Amended Complaint, the initial Motion to Dismiss (filed after Plaintiff's amendment) is asserted on behalf of both Baker and JKS&K and states that both Baker and JKS&K were named Defendants at the time. Id. at 1 (“Marshall Baker and JKS&K, Inc. d/b/a McDonald's, the named-Defendants in this action, move by special appearance . . . to dismiss this case with prejudice . . . .”). As explained below, that statement is incorrect; Plaintiff's Amended Complaint dropped Mr. Baker from the suit before the Motion to Dismiss was filed.

         On June 15, 2018, Plaintiff retained counsel. Doc. 6. On June 28, 2018, Plaintiff, through her newly-retained counsel, filed a timely Response to Defendants' Motion to Dismiss and a Motion to Amend, in which she requested leave of Court to “amend her Complaint so as to assert sufficient facts to establish a basis for her claims.”[3] Doc. 9 at 3. Plaintiff attached a copy of her proposed Second Amended Complaint to her response and motion. Doc. 9-1. The proposed Second Amended Complaint lists both Mr. Baker and JKS&K as Defendants and contains several factual allegations in support of Plaintiff's claims. Id. On August 7, 2018, Plaintiff's counsel filed a supplemental response to Defendants' Motion to Dismiss, which included an Affidavit of Service on Mr. Baker. Docs. 10, 11 (showing that Baker was served with documents on July 24, 2018).

         On August 14, 2018, Mr. Baker “renewed” his motion to dismiss, arguing that, although he was served on July 24, 2018, with several documents-including Plaintiff's Complaint, Amended Complaint, and her proposed Second Amended Complaint-he was not served with a summons. Doc. 12 at 1-2. Accordingly, Mr. Baker dropped his request to dismiss for lack of service but continued to argue for dismissal due to insufficient process under Rule 12(b)(4). Id. Mr. Baker also reasserted his failure-to-state-a-claim argument on the basis that the original Complaint and Amended Complaint did not allege sufficient facts. Id. at 3.

         Two weeks later, on August 28, 2018, Plaintiff filed a “Second Supplemental Response” to the original Motion to Dismiss, which included an Affidavit of Service on JKS&K showing that service was perfected on that entity on August 17, 2018. Doc. 14. Additionally, on August 28, 2018, Plaintiff filed a “response” to Baker's “renewed” motion to dismiss, which was largely a cut-and-paste of her June 28, 2018 response, again asking for permission to file a proposed Second Amended Complaint. Doc. 15. In that August 28, 2018 filing, Plaintiff's counsel explained she had served both Baker and JKS&K but conceded that a summons was not served on either party “due to oversight.” Id. Counsel provided no other explanation. Plaintiff's counsel stated that she was working on serving JKS&K and Mr. Baker with a summons. Id. Plaintiff subsequently filed proof that summonses were served on JKS&K and Mr. Baker on September 7, 2018, and September 22, 2018, respectively. Docs. 19, 20.

         On September 27, 2018, JKS&K also “renewed” its original Motion to Dismiss. Doc. 21. In this “renewed” Motion, JKS&K no longer argued that it was not served with process or that the service of process was insufficient, but instead stated that it was not served with process within 90 days from the date the complaint was filed. Id. at 4 (noting Plaintiff “failed to serve JKS&K with a summons and sufficient process until September 7, 2018”). Additionally, JKS&K continued to argue that the original Complaint and Amended Complaint did not contain sufficient facts to state a claim for relief. Id.

         On October 12, 2018, Baker “renewed” his Motion to Dismiss yet again, reasserting the failure-to-state-a-claim argument and arguing that he was not properly served with process within 90 days from the date the complaint was filed. Doc. 23 at 1-2. Baker also argued that he is no longer a party to the suit because Plaintiff dropped him from the suit by crossing out his name in her Amended Complaint. Id. at 2.

         Finally, on December 12, 2018, JKS&K and Mr. Baker jointly moved to stay discovery pending resolution of their original motion to dismiss and the “renewed” motions to dismiss. Doc. 25.

         DISCUSSION

         I. Plaintiff's Motion for Leave to Proceed i ...


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