United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR., UNITED STATES DISTRICT JUDGE
Amber Chapman brings this action for discrimination and
retaliation against Defendant Olymbec USA, LLC
(“Olymbec”). (ECF No. 8.) Before the Court are
Olymbec's Motion to Dismiss and Motion for Judgment on
the Pleadings, filed together on March 6, 2019. (ECF No. 13.)
Chapman responded on April 20, 2019. (ECF No. 20.) Olymbec
replied on May 2, 2019. (ECF No. 21.)
following reasons, Olymbec's Motion for Judgment on the
Pleadings and Motion to Dismiss are DENIED.
following facts are taken from Chapman's First Amended
Complaint (“FAC”). (ECF No. 8.)
owns and manages a portfolio of industrial, office, retail,
and residential properties throughout Canada and the United
States. (ECF No. 8 at 18.) Olymbec hired Chapman as a Property
Manager at one of its Memphis, Tennessee properties on or
about August 1, 2015. (Id.)
suffers from bipolar disorder and depression. (Id.)
Medical treatment helps Chapman mitigate the adverse effects
of her conditions. (Id.)
Olymbec hired Chapman, Olymbec did not know about
Chapman's conditions or perceive her as having any
disabling physical or mental condition. (Id.) In
early 2018, Chapman told Olymbec's agents that she
suffered from bipolar disorder and depression. (Id.)
Chapman asked for an accommodation based on her conditions.
(Id.) Olymbec denied Chapman's request.
asked to leave work early on February 1, 2018. (Id.
at 19.) Olymbec approved Chapman's request.
(Id.) Olymbec did not know that Chapman intended to
file a Charge of Discrimination against Olymbec with the
Equal Employment Opportunity Commission (“EEOC”).
February 1, 2018, Chapman left early and went to the
EEOC's Memphis District Office at 1407 Union Avenue.
(Id.) Olymbec owns or manages the property at 1407
Union. (Id.) While Chapman was there to file her
charge, she ran into Shirley Mason, another Olymbec employee.
(Id.) Chapman told Mason that Olymbec had
discriminated against her and that she was at 1407 Union to
file a Charge of Discrimination against Olymbec.
fired Chapman on February 2, 2018. (Id.) Olymbec
agent Jordana Berger told Chapman that she was being fired
for breaching Berger's trust by going to the EEOC office
to file a Charge of Discrimination. (Id.) Chapman
protested the grounds for her termination. (Id. at
20.) She said, “You are correct . . . I went to the
EEOC to file a complaint of discrimination. Under the law, I
am protected [and have a right] to file a complaint with the
EEOC . . . .” (Id. (brackets in original).)
Berger replied, “I don't care. You are still
filed her Complaint in this action on December 7, 2018. (ECF
No. 1.) She filed her FAC on February 20, 2019. (ECF No. 8.)
Olymbec filed its Answer to Chapman's original Complaint
the same day. (ECF No. 10.) Olymbec's March 6, 2019
motions address Chapman's FAC. (ECF No. 13.)
brings claims against Olymbec for discrimination and
retaliation under the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and the
Tennessee Disability Act (“TDA”), Tenn. Code Ann.
§§ 8-50-103 to 104. Olymbec moves for dismissal
under Federal Rule of Civil Procedure 12(b)(6) and for
judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). (ECF No. 13.)
Jurisdiction & Choice of Law
Court has federal question jurisdiction. Under 28 U.S.C.
§ 1331, district courts have original jurisdiction
“of all civil actions arising under the Constitution,
laws, or treaties of the United States.” Chapman
asserts a right to relief against Olymbec for discrimination
and retaliation in violation of the ADA. (ECF No. 8 at 21.)
Those claims arise under the laws of the United States.
Court has supplemental jurisdiction over Chapman's TDA
claims. See 28 U.S.C. § 1367(a). Those claims derive
from a “common nucleus of operative fact” with
Chapman's federal claims against Olymbec. See United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966);
Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576,
588 (6th Cir. 2016); see also 28 U.S.C. § 1367(a).
substantive law applies to state-law claims brought in
federal court. See Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938). Where, as here, there is no dispute that a
certain state's substantive law applies, the court will
not conduct a choice-of-law analysis sua sponte. See GBJ
Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th
Cir. 1998). The parties assume in their respective motions
and memoranda that Tennessee substantive law applies to
Chapman's TDA claims and ground their arguments
accordingly. The Court will apply Tennessee substantive law
to Chapman's state-law claims.
Standard of Review
Motion to Dismiss
12(b)(6) allows dismissal of a complaint that “fail[s]
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion permits the
“defendant to test whether, as a matter of law, the
plaintiff is entitled to legal relief even if everything
alleged in the complaint is true.” Mayer v.
Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A motion to
dismiss tests only whether the plaintiff has pled a
cognizable claim and allows the court to dismiss meritless
cases that would waste judicial resources and result in
unnecessary discovery. See Brown v. City of Memphis,
440 F.Supp.2d 868, 872 (W.D. Tenn. 2006).
evaluating a motion to dismiss for failure to state a claim,
the Court must determine whether the complaint alleges
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). If a court decides in light of its
judicial experience and common sense that the claim is not
plausible, the case may be dismissed at the pleading stage.
Iqbal, 556 U.S. at 679. The “[f]actual allegations must
be enough to raise a right to relief above [a] speculative
level . . . .” Twombly, 550 U.S. at 555.
is plausible on its face if “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. A complaint
need not contain detailed factual allegations. However, a
plaintiff's “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements
do not suffice.” Id.
Motion for Judgment on the Pleadings
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed -- but early enough not to delay
trial -- a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). A Rule 12(c) motion for
judgment on the pleadings is reviewed under the same standard
as a Rule 12(b)(6) motion to dismiss. See Gavitt v.
Born, 835 F.3d 623, 639 (6th Cir. 2016); Fritz v.
Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.
2010); Hunter v. Ohio Veterans Home, 272 F.Supp.2d
692, 694 (N.D. Ohio 2003).
moves for dismissal and judgment on the pleadings on
Chapman's claims for discrimination and retaliation under
the TDA and the ADA.
Timeliness of Olymbec's Motions
contends that the Court should deny Olymbec's Motion to
Dismiss as untimely because Olymbec filed it after filing an
Answer to her original Complaint. (ECF No. 20 at 77.) Olymbec
responds that its Motion to Dismiss is timely for two
independent reasons: (1) Olymbec asserted a
failure-to-state-a-claim defense in its Answer; and (2)
Chapman's FAC supersedes her original Complaint. (ECF No.
21 at 91.) The latter reason is sufficient. Olymbec's
Motion to Dismiss is timely because Chapman filed an amended
complaint to which Olymbec has not yet responded.
general rule is that an amended pleading supersedes the
original and remains in effect, unless again modified, from
that point forward.” Greater Cincinnati Coal. for
Homeless v. City of Cincinnati, No. C-1-08-603, 2009 WL
3029661, at *3 (S.D. Ohio Sept. 16, 2009)(quoting 6 Wright et
al., Federal Practice & Procedure § 1476, at 556-57
(2nd ed. 1990 & Supp. 2001)); see Drake v. City of
Detroit,266 Fed.Appx. 444, 448 (6th Cir.
2008)(“[An] amended complaint supercedes all prior
complaints . . . .”)(citing Pintando v. Miami-Dade
Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)).
“Once an amended pleading is filed, the original
pleading no longer performs any function in the case.”
6 Wright et al., Federal Practice & Procedure §
1476, at 556-57; see also United States v. Shofner Iron
& Steel Works,71 F.Supp. 161, 162 (D. Or.
1947)(“[An] amended complaint supersedes the original
complaint [and] no motion of any kind can  be addressed to
the original complaint as it performs no function in the
action . . . ...