United States District Court, S.D. Georgia, Savannah Division
JILL E. MACK, Plaintiff,
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, Intervenor, HERTY ADVANCED MATERIALS DEVELOPMENT CENTER, Defendant.
WILLIAM T. MOORE JR. UNITED STATES DISTRICT COURT JUDGE.
the Court is Intervenor Board of Regents' of the
University System of Georgia's (the "Board")
Motion to Dismiss. (Doc. 16.) For the following reasons, the
Board's Motion to Dismiss is GRANTED IN
PART and DENIED IN PART.
8, 2015, Plaintiff filed a complaint against Herty Advanced
Materials Development Center ("HAMDC") . (Doc. 1. )
She alleged that the entity had hired her in April of 2012 to
act as a quality control laboratory technician. (Id.
at ¶ 6.) On August 15, 2013, Plaintiff took time off
from work to care for her husband pursuant to the Family
Medical Leave Act, 29 U.S.C. §§ 2601-2654
("FMLA") . (Id. at ¶ 7.) Around the
same time, Plaintiff informed her employer that she would
need to take time off for surgery related to her carpal
tunnel syndrome and cubital tunnel syndrome. (Id. at
¶ 8.) She took the requisite time, and on October 8,
2013, began receiving short-term disability benefits.
(Id. at ¶¶ 9-10.)
she was recovering, Plaintiff learned that an employee had
been hired to replace her. (Id. at ¶ 11. )
Plaintiff s employment with HAMDC was terminated on November
12, 2013. (Id. at ¶ 12.) Plaintiff alleges that
at the time of her termination she had remaining unexpired
FMLA leave, was not informed that she was ineligible for FMLA
leave, and was on medical leave for a personal health
condition. (Id. at ¶¶ 13-17.) Plaintiff
brought claims for violations of the FMLA and the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq.
("ADA"). (Id. at ¶¶ 18-35.)
9, 2015, the Court issued a summons to Herty Advanced
Materials Development Center, care of Alexander A. Koukoulas.
(Doc. 2. ) On November 13, 2015, an entity named Herty
Advanced Materials Development Center, LLC ("Herty,
LLC") answered the complaint. (Doc. 4.) The answer stated
that Herty, LLC was making a special appearance to file an
answer on behalf of the named defendant HAMDC. (Id.
at 1. ) However, the answer stated that Plaintiff had failed
to join an indispensable party because Herty, LLC had never
employed Plaintiff. (Id. at 2. ) Three days later,
the Board filed its Motion to Dismiss alleging that it was
the successor to and continuation of the HAMDC. (Doc. 6.) The
Board argued that the complaint should be dismissed for
improper service. (Doc. 6, Attach. 1 at 2.) The Court
dismissed that motion because the Board had failed to file
either a motion to intervene or a motion to substitute party.
12, 2016, the Board filed a Motion to Intervene. (Doc. 13.)
The motion was granted on August 2, 2016. (Doc. 14.) On
August 15, 2016, the Board filed a renewed motion to dismiss
the complaint in lieu of an answer. (Doc. 16.) In response to
the Board's Motion to Dismiss, Plaintiff, who does not
contest the applicability of the Eleventh Amendment to the
Board, argued that the Court should grant Plaintiff the
opportunity to discover the identity of her actual employer.
(Doc. 20.) Plaintiff noted that she served HAMDC and the
individual that terminated her from HAMDC, Alexander
Koukoulas. (Id. at 6.) Mr. Koukoulas is also listed
as the Chief Executive Officer ("CEO") and
President of HAMDC and Herty, LLC. (Doc. 20, Attach. 3.)
Moreover, HAMDC and Herty, LLC share the same address. (Doc.
20, Attach. 4, Attach. 5.) Plaintiff also alleged that none
of her work documents reference the Board. (Id.) As
a result of the confusion surrounding Plaintiff's proper
employer, this Court administratively terminated the
Board's Motion to Dismiss and directed the parties to
file briefs regarding Plaintiff s proper employer and the
relationship between HAMDC, Herty, LLC, and the Board. (Doc.
25.) The Board filed a brief on behalf of itself and HAMDC
addressing the employment of Plaintiff and arguing that
O.C.G.A. § 20-3-73.3 transferred control and ownership
of HAMDC to the Board. (Doc. 28.) Plaintiff responded to the
Board by agreeing that Plaintiff was employed by HAMDC prior
to the transfer of ownership to the Board, but argued that
her employment was still with HAMDC because her
employment-related documents all referenced HAMDC as her
employer. (Doc. 29.) Herty, LLC also responded to this
Court's show cause order by pointing to evidence that
Herty, LLC did not exist for the majority of Plaintiff s
employment with HAMDC and that Herty, LLC did not receive an
Employer Identification Number ("EIN") until after
Plaintiff was terminated from HAMDC. (Doc. 33.) After
reviewing the briefs regarding Plaintiffs proper employer,
the Board's Motion to Dismiss is now ripe for review.
STAHDARD OF REVIEW
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
"[T]he pleading standard Rule 8 announces does not
require 'detailed factual allegations,' but it
demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation." Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d. 929 (2007)).
"A pleading that offers 'labels and conclusions'
or a 'formulaic recitation of the elements of a cause of
action will not do.' " Id. (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964).
"Nor does a complaint suffice if it tenders "naked
assertion[s]' devoid of 'further factual
enhancement.' " Id. (quoting
Twombly, 550 U.S. at 557, 127 S. Ct. at 19 66)
(alteration in original).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.' "
Id. (quoting Twombly, 550 U.S. at 570, 127
S. Ct. at 1973). For a claim to have facial plausibility, the
plaintiff must plead factual content that "allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949)
(internal quotations omitted). Plausibility does not require
probability, "but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
"Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it
'stops short of the line between possibility and
plausibility of entitlement to relief.' "
Id. (quoting Twombly, 550 U.S. at 557, 127
S. Ct. at 1966). Additionally, a complaint is sufficient only
if it gives "fair notice of what the . . . claim is and
the grounds upon which it rests." Sinaltrainal,
578 F.3d at 1268 (quoting Twombly, 550 U.S. at 555,
127 S. Ct. at 1964).
the Court considers a motion to dismiss, it accepts the
well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 at 1260. However, this
Court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Iqbal, 556
U.S. at 678, 129 S. Ct. at 1949. Moreover, "unwarranted
deductions of fact in a complaint are not admitted as true
for the purpose of testing the sufficiency of
[plaintiff's] allegations." Sinaltrainal,
578 F.3d at 1268 (citing Aldana v. Del Monte Fresh
Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005)). That is, "[t]he rule 'does not impose a
probability requirement at the pleading stage,' but
instead simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary element." Watts v. Fla. Int'1
Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 545, 127 S. Ct. at 1959).
THE BOARD'S MOTION TO DISMISS
Board argues in its Motion to Dismiss that it was
Plaintiff's employer and, therefore, Plaintiff's
claims are barred for various reasons, including that the
Board is immune from suit under the Eleventh Amendment. (Doc.
16.) The Board also argues that because Plaintiff served
HAMDC and not the Chancellor of the Board, as required by
Georgia law, Plaintiff's claims should be dismissed for
improper service. (Id.) Many of the Board's
arguments related to the dismissal of Plaintiff s claims are
dependent on the Board being Plaintiff's employer at the
time of the relevant events. (Id.) Accordingly, the