The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM ORDER OF COURT
Pending now before the Court are DEFENDANT STEVE JORDAN'S MOTION TO DISMISS AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) (Document No. 14) and DEFENDANT JAMES A. BEROS' MOTION TO DISMISS AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) (Document No. 16). Defendants filed briefs in support of their respective motions. Plaintiff Mabel Cole, who is proceeding pro se, filed a handwritten response (Document No. 18) and the motions are ripe for disposition.*fn1
As the Court explained in its Order dated May 29, 2008, the proper standard for evaluating motions to dismiss has been the subject of two recent binding decisions. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), all nine justices of the United States Supreme Court agreed that the oft-quoted standard that a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" has been retired and "is best forgotten." Id. at 1968. The Court explained that a complaint must allege enough "facts" to show that a claim is "plausible" and not merely conceivable. Id. at 1965. The term "plausible" is not suspectible of mathematical quantification, but lies somewhere on the rhetorical spectrum between `"conceivable" or "speculative" and "probable." Indeed, the Twombly Court made a distinction between facts that were merely "consistent" with wrongful conduct and facts that would be "suggestive" enough to render the alleged conduct plausible. Id. at 1966. In particular, the Court upheld dismissal of a complaint alleging an antitrust conspiracy, despite "stray averments" that defendants had entered into an unlawful agreement, explaining that the plaintiff had alleged "merely legal conclusions." Id. at 1970. The Supreme Court also emphasized the need for district courts to prevent unjustified litigation expenses resulting from claims that are "just shy of a plausible entitlement." Id. at 1967, 1975.
In Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit further refined the Twombly standard. As the Court of Appeals explained, "notice pleading" pursuant to Rule 8(a)(2) remains intact, but requires the pleader to make a "showing" of entitlement to relief, and to give the defendant fair notice of what the claim is and the grounds upon which it rests. A pleader may not simply make a "bare averment that he wants relief and is entitled to it." Id. at 233. Labels, conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. Id. at 231. Rather, the now-applicable pleading standard is as follows: stating a claim requires a complaint with enough factual matter (taken as true) to raise a reasonable expectation that discovery will reveal evidence of all the necessary elements of Plaintiff's claims. Id. at 234.
Procedural History and Factual Background
The original complaint in this case was filed on April 21, 2008 and named only Beros and Jordan as defendants. Beros and Jordan filed motions to dismiss the complaint, on several grounds. In a Memorandum Order dated May 29, 2008, the Court granted the motions to dismiss, explaining that Beros and Jordan, as individuals, were not proper defendants. The Court gave Plaintiff leave to amend her complaint. On June 18, 2008, Plaintiff filed an Amended Complaint. Defendants Beros and Jordan have filed motions to dismiss the Amended Complaint.
Plaintiff's handwritten Amended Complaint (Document No. 12) does not contain any caption, which is not in accordance with the rules of civil procedure. See Fed. R. Civ. P. 10 (every pleading must have a caption and the title of a complaint must name all the parties). On June 26, 2008, Plaintiff filed a supplement (Document No. 13), which asks the clerk of court to add two attachments to the Amended Complaint. The first attachment purports to be a handwritten cover sheet, which contains a caption naming "Union Local 585 and its agents James Beros and Steve Jordan attorney" as Defendants.*fn2 The second attachment is typed and identifies all of the following as Defendants: "James Beros, Agent for Teamsters, Chauffeurs, Warehousemen, and Helpers, Local Union 585 in the capacity of President for Local 585 in affiliation with International and Brotherhood of Teamsters, Affiliated with Teamsters Joint Council No. 40. AND Teamsters, Chauffeurs, Warehousemen, and Helpers, Local Union No. 585 AND Steve Jordan, Attorney for Local 585." Plaintiff's response to the pending motions to dismiss has a slightly different caption, which identifies "Local 585 International Brotherhood of Teamsters and Agents James Beros, agent, and Steve Jordan, attorney for Local 585" as Defendants. There is no indication that either Local 585, Joint Council No. 40 or the International Brotherhood of Teamsters has been properly served with a summons and the Amended Complaint, see Fed. R. Civ. P. 4 and none of the union entities has filed a response. The union entities have not properly been made parties to this action, and thus, the Court will address only the claims asserted against Jordan and Beros.*fn3
Defendant Beros is alleged to be the President of Teamsters, Chaffeurs, Warehousemen and Helpers, Local Union 585 and Defendant Jordan is an attorney for Teamsters Local Union 585. The Amended Complaint alleges that Ms. Cole was suddenly hospitalized on August 15, 2005. When Ms. Cole notified her employer the next day, she was informed that she needed to fill out papers for Cobra coverage, which is offered to employees who have been fired. The Amended Complaint alleges that Ms. Cole had surgery on August 18, 2005 and remained off work for three weeks, using paid sick leave. The Amended Complaint alleges that suddenly, Plaintiff received a call from her employer ordering her to return to work with a doctor's order releasing her to full duty immediately and informing her that she was not eligible for leave under the Family and Medical Leave Act. At this point, Ms. Cole called Defendant Beros, who allegedly advised her to "take a request in for Medical Leave coverage in contract." The Amended Complaint alleges that the request was denied and on September 27, 2005, Plaintiff was fired. The Amended Complaint alleges that on October 14, 2005, Ms. Cole "would have been eligible for FFMLA." The Amended Complaint explains that Ms. Cole had worked 1250 hours but "was 15 days short of a year of employment with Beverly Health Care." Plaintiff contends that, had she been granted the medical leave to which she was entitled under the collective bargaining agreement, she would have been eligible for FMLA. The Amended Complaint alleges that Defendants Beros and Jordan were aware that she wanted her grievance to be argued based on the foregoing facts but disregarded her request. The Amended Complaint alleges that Ms. Cole relied on Jordan for the "legal stuff" and that Jordan interrupted the arbitration such that the arbitrator did not rule. The Amended Complaint alleges that Jordan explained to Ms. Cole that she was not going to get backpay or front pay, just $7,500.00, and that "they were not going to pay me one million dollars to sit home and watch Oprah." The Amended Complaint alleges that "the bargaining union agreed with Beverly Health Care and gave the appearance of misrepresentation by remaining silent." Ms. Cole contends that the actions of Beros and Jordan were fraudulent. She also asserts claims under the Fourteenth Amendment, Americans With Disabilities Act, and the Federal Family and Medical Leave Act.
Contentions of the Parties
Defendants contend that, even accepting as true all of the well-pleaded allegations of the Amended Complaint, it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Defendants contend that they are not subject to individual liability under the Americans With Disabilities Act ("ADA")*fn4 or Family and Medical Leave Act ("FMLA"), that there has been no "state action" as required to establish a violation of the Fourteenth Amendment, and that they cannot be held individually liable for acts which they performed (as President and attorney, respectively) on behalf of the Union. Defendants also contend that a claim for the alleged breach of duty of fair representation is untimely. In addition, Defendant Jordan renews his argument that the Complaint has not set forth sufficient facts to adequately plead a legal malpractice claim.*fn5
In response to the renewed motions to dismiss, which Ms. Cole believes to be based on the argument that the claims are untimely under contract law, Plaintiff contends that she has "claimed from the beginning this is a violation case of my civil rights." In support of this position, Plaintiff has submitted a copy of a Teamsters Local #585 Grievance Form filed on October 5, 2005, which describes the nature of Ms. Cole's grievance as "disability discrimination, violation of union contract medical leave, Title VII Civil Rights Act 1964 [and] Americans [With] Disability Act 1990."*fn6 Plaintiff further contends that the statute of limitations for violation of the ADA is four years.
Defendants Beros and Jordan raise similar arguments. Their renewed motions to dismiss will again be addressed simultaneously. The legal ...