United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
ALETA A. TRAUGER, District Judge.
Pending before the court is a Motion to Dismiss the Amended Complaint and a Motion for Sanctions (Docket No. 32) filed by the defendants, the International Mission Board of the Southern Baptist Convention, Inc. ("IMB") and Global Enterprise Services, LLC ("GES") (together, the "defendants"). The plaintiffs failed to file a timely response to the defendants' motion. Shortly after the plaintiffs' procedural deadline to respond expired, the defendants filed a Motion to Ascertain Status of their pending motion. (Docket No. 35.) In response, the plaintiffs filed a Motion for Leave to File a Response in opposition to the pending motion for dismissal and sanctions. (Docket No. 36.) For the reasons discussed herein, the defendants' Motion to Dismiss and Motion for Sanctions will be granted, the plaintiffs' Motion for Leave to File a Response will be denied, and the plaintiffs' claims will be dismissed with prejudice.
On July 30, 2014, this court granted a motion to dismiss filed by the defendants. Nollner v. Southern Baptist Convention, Inc., et al. , No. 14-1065, 2014 WL 3749522 (M.D. Tenn. July 30, 2014). In a Memorandum accompanying the Order, the court dismissed the plaintiffs' claims without prejudice and permitted the plaintiffs leave to file an amended pleading within 15 days of the court's order. Id.
In its July 30, 2014 opinion, the court expressly informed the plaintiffs that their pleadings were defective and, short of drawing a roadmap, gave the plaintiffs very explicit suggestions as to how to remedy the pleading's deficiencies. Specifically, the court concluded that "the choice of law provision included in the plaintiffs' employment agreement with IMB is valid and enforceable" and, therefore, the plaintiffs' common law claims would only be viable if postured as claims under Virginia law. Id. at *6. The court also hinted to plaintiffs' counsel that the simple re-pleading of the plaintiffs' claims was long overdue. The court's order states that, "despite being aware of the defendants' position as to the choice of law provision for nearly three years (and throughout two lawsuits), the plaintiffs have failed to amend their pleadings to include Virginia law claims (even in addition to their Tennessee law claims)." Id. at *9. Nevertheless, in the interest of having the plaintiffs' claims decided on the merits, the court permitted the plaintiffs' counsel an additional opportunity to amend the pleading to add Virginia common law claims.
On August 14, 2014, the plaintiffs filed an Amended Complaint. (Docket No. 30.) The facts of the Amended Complaint appear to be nearly identical to the facts described by the court in its July 30, 2014 opinion, familiarity with which is assumed. More importantly, the Amended Complaint asserts four causes of action: (1) common law retaliatory discharge under Tennessee law; (2) in the alternative or in addition to their common law claim, retaliatory discharge from employment in violation of the Tennessee Public Protection Act, T.C.A. § 50-1-304 ("TPPA"); (3) breach of contract under Tennessee common law or, alternatively, a statutory cause of action pursuant to Virginia's Uniform Computer Information Transactions Act ("UCITA"), VA Code Ann. § 59.1-507.1; and (4) promissory estoppel under Tennessee law.
The defendants moved to dismiss the Amended Complaint on August 29, 2014 pursuant to Federal Rule of Civil Procedure 12(b)(6) because (1) the plaintiffs failed to plead Virginia law as to their common law retaliatory discharge and promissory estoppel claims; (2) the plaintiffs' alternative Virginia law claim for breach of contract is not viable, as the statutory violation pled by the plaintiffs expressly does not apply to employment contracts; and (3) the plaintiffs should not be permitted to join SBC as a defendant. The defendants have also moved for sanctions against plaintiffs' counsel pursuant to 28 U.S.C. § 1927 on the grounds that plaintiffs' counsel has multiplied the proceedings unreasonably by filing an Amended Complaint that fails to correct fatal flaws previously and generously identified by the court.
Local Rule 7.01 permitted the plaintiffs to file a response to the Rule 12 motion (or otherwise ask for an extension of time) by September 15, 2014. The plaintiffs failed to do so and, on September 16, 2014, the defendants filed a Motion to Ascertain Status, asking the court to consider its pending motion unopposed and to dismiss the plaintiffs' claims with prejudice. (Docket No. 35.)
Apparently, although the defendants' Motion to Dismiss the Amended Complaint escaped the plaintiffs' counsel's attention, the defendants' Motion to Ascertain Status did not. The same day that the defendants filed their status motion, the plaintiffs' counsel quickly filed a Motion for Leave to Respond to the pending motion to dismiss. (Docket No. 36.) Without giving any explanation for their delay in responding to the Rule 12 motion, the plaintiffs' Motion for Leave argues that, because the "Defendants present information that is outside the pleadings in this matter, " the court should convert the pending Rule 12 motion into a "request for summary judgment" pursuant to Rule 12(d). Accordingly, the plaintiffs contend, they should be permitted 21 days to respond to the defendants' Rule 12 motion, in accordance with Federal Rule of Civil Procedure 56. In conjunction with their Motion for Leave, the plaintiffs also filed a proposed Response in opposition to the Motion to Dismiss. (Docket No. 37.)
The defendants vigorously oppose the plaintiffs' request for leave. They contend that plaintiffs are not entitled to leave because (1) the only basis for failing to file a timely response to the Motion to Dismiss is the plaintiffs' assertion that the court should convert the motion to dismiss into a motion for summary judgment; and (2) conversion is inappropriate here because the only documents referenced by the defendants in their pending motion are also attached to or referenced in the Amended Complaint.
I. The Defendants' Motion to Dismiss
As an initial matter, the plaintiffs' counsel have provided no excuse for failing to respond to the defendants' Motion to Dismiss within the timeframe set forth by Local Rule 7.01. Moreover, their request that the court convert the defendants' Rule 12 motion into a Rule 56 motion is unfounded. The defendants' motion relies only upon documents that are either attached to or referenced in the plaintiffs' Amended Complaint-the same documents that the court already ruled were properly considered at the Rule 12 stage in this action . 2014 WL 3749522, at *9 n.2. As the court previously stated, conversion under Rule 12(d) is only appropriate where "matters outside the pleadings are presented" to the court. No such matters are present here.
Accordingly, the court will deny the plaintiffs' Motion for Leave and considers the defendants' Motion to Dismiss to be unopposed. Consequently, the court will grant the defendants' unopposed Rule 12(b) ...