United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
In November 2012, Plaintiff Carla Cannon was employed by SSM Health Care when she applied and was approved for intermittent leave under the Family Medical Leave Act because of complications from gallbladder surgery. In February 2013, Cannon was discharged from her employment with the defendant. Cannon has now filed this lawsuit asserting a total of seven claims against SSM Health.
This action is before me now on SSM Health's partial motion to dismiss three of Cannon's seven claims as well as its motion to strike Cannon's response in opposition to the motion to dismiss. SSM Health has moved to dismiss Cannon's claims for wrongful discharge; violation of Missouri's service letter statute, Mo. Rev. Stat. § 290.140; and defamation. Because I find that Cannon has failed to allege the correct elements of a wrongful discharge claim, failed to properly request a service letter under Mo. Rev. Stat. § 290.140, and stated insufficient facts in support of a claim for defamation, I will grant the defendant's partial motion to dismiss. Because I find that the delay in Cannon's response was not intentional and caused no prejudice to SSM Health, I will deny the motion to strike.
I. SSM Health's Motion to Strike
I will first address defendant's motion to strike plaintiff's response in opposition to the motion to dismiss. Plaintiff Cannon filed her response in opposition to the defendant's motion to dismiss nearly three weeks late, without receiving an extension or leave from this Court. In its motion to strike, SSM Health asks the court to strike plaintiff Cannon's opposition for failure to adhere to the Court's procedural rules and grant SSM Health's motion to dismiss as unopposed. Cannon responds that the motion to strike should be denied because her delay in filing was the result of excusable neglect in that she believed she was filing in a timely manner.
Because dismissal with prejudice is an extreme sanction, it is only to be used in cases of willful disobedience of a court order or where a party exhibits a pattern of intentional delay. Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997); see also SMA Irrevocable Trust v. R. Capital Advisors, LLC, No. 4:11CV00697 ERW, 2012 WL 5194332, at *4 (E.D. Mo. Oct 19, 2012) (granting a motion to strike and for dismissal where there was "ample evidence" that that defendant's delay was deliberate). I find that Cannon's delay in this instance was accidental and that she has not demonstrated any ongoing pattern of deliberate delay. For this reason, and because I find no resulting prejudice to SSM Health, I will deny SSM Health's motion to strike.
II. Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. When considering a 12(b)(6) motion, the court assumes the factual allegations of a complaint are true and construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." In Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2) requires complaints to contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Specifically, to survive a motion to dismiss, a complaint must contain enough factual allegations, accepted as true, to state a claim for relief "that is plausible on its face." Twombly, 550 U.S. at 570. The issue in considering such a motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim. See Neitzke, 490 U.S. at 327.
After undergoing gall bladder surgery in October, 2012, plaintiff Cannon experienced post-operative complications including intermittent episodes of abdominal pain, nausea and vomiting that impeded her ability to work. Because of these complications, she was approved for intermittent FMLA leave by SSM Health in November 2012.
On January 13, 2013, Cannon arrived at work feeling ill and asked to take FMLA leave for the day but was told that if she left she would be terminated. Because she was particularly fatigued, Cannon closed her eyes for a few seconds at the nurses' station during her shift but did not fall asleep. On February 7, 2013, Cannon was discharged by SSM Health. In a letter to Cannon regarding her discharge, Cannon's supervisor seemed to indicate that Cannon was being discharged for a combination of sleeping on the job, wearing a blanket while at work, and failing to wear a department tracker.
After her discharge, Cannon spoke with an attorney (not her counsel in this action) regarding her termination. In a letter dated March 6, 2013, and addressed to SSM Health Care, Cannon's attorney asked that SSM Health provide a letter, under Mo. Rev. Stat. § 290.140, stating the type of work Cannon performed for SSM Health, the dates of her employment, and the cause of her discharge. The letter indicated that the attorney had been retained to represent Cannon with respect to her termination. The letter was signed by the attorney but not by Cannon, and it asked that SSM Health send the "termination letter, " and any other communications regarding Cannon, directly to the attorney. As of the date that Cannon's complaint in this matter was filed, neither Cannon nor her attorney had received a response to this letter.
Finally, since her discharge, Cannon has been scheduled for multiple job interviews, prior to which each interviewing company has called and told her, allegedly falsely, that the position she was supposed to interview for is no longer available. It is Cannon's belief that in these instances, SSM Health or its agents communicated with Cannon's ...