United States District Court, S.D. Georgia, Brunswick Division
SHERETA D. PUGH, Plaintiff,
MARSHALL BAKER; and JKS&K, INC. d/b/a MCDONALD'S, Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
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,
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.
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. 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
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. 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.
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.” 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).
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.
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.
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.
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.
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.
Plaintiff's Motion for Leave to Proceed i ...