United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti United States Magistrate Judge
OPINION AND ORDER GRANTING MEDICOLEGAL SERVICES
LLC'S MOTION TO DISMISS  AND GRANTING OAKLAND
DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
Gershwin A. Drain United States District Court Judge
Hawthorne-Burdine ("Plaintiff) filed this case on August
29, 2016, alleging discrimination by her past employer,
Oakland University, and other defendants including
Medicolegal Services ("Medicolegal"), 30
individually-named defendants, and 100 John Does
(collectively, "Oakland Defendants, " excluding
Medicolegal). See Dkt. Nos. 1, 12. This case is
related to a prior proceeding (hereinafter, the "2015
Case"), which was dismissed and its judgment affirmed by
the Sixth Circuit in November 2016. See Hawthorne-Burdine
v. Oakland Univ., 158 F.Supp.3d 586 (E.D. Mich. 2016);
Hawthorne-Burdine v. Oakland Univ., No. 16-1103 (6th
Cir. Nov. 3, 2016).
matter is before the Court on Medicolegal's Motion to
Dismiss  and Oakland Defendants' Renewed Motion to
Dismiss and/or for Summary Judgment . Both motions are
fully briefed and oral argument was held on February 13,
reasons discussed herein, Court will GRANT
Medicolegal's Motion to Dismiss  and
GRANT Oakland Defendants' Renewed Motion
to Dismiss and/or for Summary Judgment .
Plaintiff's Employment with Oakland University and Denial
related to Plaintiff's employment with Oakland
University, her removal from the campus, and the denial of
Plaintiff's tenure application were recited in the 2015
Case. Hawthorne-Burdine, 158 F.Supp.3d at 591-96. As
the facts related to these issues are lengthy, and all
occurred prior to September 2015, the Court refers to the
Background section of the order dismissing the 2015 Case for
the sake of brevity. See id.
The 2015 Case
September 16, 2015, Plaintiff filed a complaint alleging
discrimination by her former employer, Oakland University,
Medicolegal Services, 28 individually-named defendants, and
100 John Does. See Hawthorne-Burdine, 158 F.Supp.3d
Complaint in the 2015 Case, Plaintiff referenced to and
quoted from the three independent medical examination
assessments that Oakland University required her to undergo
to be allowed to return to campus. Case No. 15-cv-13285, Dkt.
No. 4, pp. 33-34 (Pg. ID 89-90). Oakland Defendants included
these assessments as exhibits in their motion to dismiss
and/for summary judgment to respond to Plaintiff's
allegations. Compare id. (stating that all three
assessments cleared Plaintiff to return to work) with
Hawthorne-Burdine, 158 F.Supp.3d at 594 (providing that
Dr. Wolf's psychiatric examination reported that
Plaintiff “should be regarded as unfit to return to her
teaching position at the present time”); see also
Hawthorne-Burdine, 158 F.Supp.3d at 595 n.10 (“In
her Complaint, Plaintiff misattributed her own statements,
quoted by Dr. Wolf in his psychiatric report, as though they
were Dr. Wolf's examination findings.”). Defendants
filed the medical assessments on the public docket on October
29, 2015. Case No. 15-cv-13285, Dkt. No. 12. Plaintiff filed
a motion to strike the assessments on November 9, 2015. Dkt.
No. 18. The Court sealed the assessments on November 10,
2015, Dkt. No. 20, one day after the Court was notified the
documents should be placed under seal.
December 8, 2015, Plaintiff filed “protected health
information provided by her private physician for ADA
accommodation” on the docket without properly sealing
it. Case No. 15-cv-13285, Dkt. No. 30, p. 1 (Pg. ID 1845);
Case No. 15-cv- 13285, p. 22 (Pg. ID 524) (noting
Plaintiff's health ailments would make traveling to
different campus to teach difficult). The Court ultimately
struck the entire filing as untimely on December 17, 2015.
Case No. 15-cv-13285, Dkt. No. 32, pp. 2-3 (Pg. ID 1850-51)
(“Plaintiff then filed two motions, Dkt. No. 30-31,
seeking to strike duplicative filings, Dkt. No. 26-27, and
seal an exhibit she herself filed without complying with
Local Rule 5.3(a).”).
full briefing and oral argument, the Court granted
Defendants' Motion to Dismiss and/or Motion for Summary
Judgment on January 27, 2016. See id. Plaintiff
filed a timely appeal. Case No. 15-cv-13285, Dkt. No. 38, p.
1 (Pg. ID 1904).
Sixth Circuit affirmed the Court's judgment on November
3, 2016 after performing a de novo review. Case No.
15-cv-13285, Dkt. No. 40, p. 2 (Pg. ID 1908). In its Order,
the Sixth Circuit held: (1) “Hawthorne-Burdine could
not rebut Oakland University's proffered legitimate,
nondiscriminatory reason for her termination, and the
district court did not err in dismissing her race
discrimination claim, ” id. at 3-4 (Pg. ID
1909-10); (2) “The district court did not err in
dismissing Hawthorne-Burdine's ADA and ADEA claims
against Oakland University because the university is entitled
to sovereign immunity, ” id. at 4 (Pg. ID
1910); (3) “The district court did not err in
dismissing Hawthorne-Burdine's claims against the
individually named defendants because individuals who are not
employers cannot be held personally liable under the ADA,
” id.; (4) “The district court did not
err in dismissing the claims against the Oakland University
Police Department because it does not exist as an entity
separate from the university itself, ” id.;
(5) “The district court did not err in dismissing her
claims against Medicolegal because Hawthorne-Burdine did not
allege that Medicolegal was her employer, ”
id.; (6) “The district court did not err in
declining to exercise jurisdiction over
Hawthorne-Burdine's supplemental state-law claims because
the court properly dismissed her federal claims, ”
id.; (7) “[Hawthorne-Burdine] is not entitled
to relief on her judicial bias claim because ‘judicial
rulings alone almost never constitute valid basis for a bias
or partiality recusal motion, ' ” id.; and
(8) “a district court does not abuse its discretion in
failing to grant a party leave to amend where such leave is
not sought.” Id. at 4-5.
is no evidence on the 2015 Case's docket that Plaintiff
appealed the Sixth Circuit's order affirming judgment to
the United States Supreme Court.
The 2016 Case
appealing the 2015 Case, but prior to the Sixth Circuit's
decision affirming the Court's judgment, Plaintiff filed
this second proceeding (hereinafter, the “2016
Case”) in August 2016. See Dkt. No. 1.
Plaintiff filed a first Amended Complaint on September 28,
2016, adding Defendants' counsel from the 2015 Case,
Daniel Bernard, as a new defendant and adding four additional
claims. Dkt. No. 12. Plaintiff's 2016 Amended Complaint
includes 21 claims. Id. On October 31, 2016, the
Court dismissed six of Plaintiff's claims that had been
dismissed with prejudice in the 2015 Case. Dkt. No. 29, p. 6
(Pg. ID 804). The dismissed claims alleged violations of the
Americans with Disabilities Act (ADA), Title VII of the Civil
Rights Act (Title VII), and Age Discrimination in Employment
Act (ADEA). Id. Accordingly, fifteen of the claims
brought in Plaintiff's Amended Complaint remain.
October 25, 2016, Medicolegal filed a Motion to Dismiss,
arguing that Plaintiff's claims are barred by res
judicata and fail to state a claim upon which relief can be
granted. Dkt. No. 25. Oakland Defendants similarly filed a
Motion to Dismiss and/or for Summary Judgment based on the
Amended Complaint on November 22, 2016, Dkt. No. 33, which
was stricken for utilizing an improper font size, Dkt. No.
34. The Court granted Oakland Defendants an additional six
days to refile the brief in accordance with the Local Rules.
Dkt. No. 34. Oakland Defendants submitted a renewed motion,
in compliance with the Local Rules, on November 28, 2016.
Dkt. No. 35.
defendants seek to dismiss an action under Rules 12(b)(1) and
12(b)(6), the court is “bound to consider the 12(b)(1)
motion first, since the Rule 12(b)(6) challenge becomes moot
if this court lacks subject matter jurisdiction.”
Moir v. Greater Cleveland Reg'l Transit Auth.,
895 F.2d 266, 269 (6th Cir. 1990). Dismissals for lack of
jurisdiction should generally be made without prejudice.
Ernst v. Rising, 427 F.3d 351, 367 (6th Cir. 2005).
Rule 12(b)(1) motion, the plaintiff bears the burden of
proving jurisdiction in order to survive the motion.
Id. Furthermore, on a Rule 12(b)(1) motion, unlike a
Rule 12(b)(6) motion, the court is empowered to resolve
factual disputes. Rogers v. Stratton Indus., Inc.,
798 F.2d 913, 915 (6th Cir. 1986).
to dismiss for lack of subject matter jurisdiction fall into
two general categories: facial attacks and factual
attacks.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994). Whereas a facial attack is a
challenge to the sufficiency of the pleading itself, a
factual attack challenges the factual existence of subject
matter jurisdiction. Id. Where the motion makes a
facial attack, the court must construe the petition's
allegations in the light most favorable to the non-moving
party and take the material allegations as true. Id.
Conversely, on a factual attack, there is no presumption of
truthfulness applied to factual allegations, allowing the
court to “weigh the evidence and satisfy itself as to
the existence of its power to hear the case.”
Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which
relief can be granted.” To withstand a motion to
dismiss pursuant to Rule 12(b)(6), a complaint must comply
with the pleading requirements of Federal Rule of Civil
Procedure 8(a). See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Rule 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quotation marks omitted) (quoting Fed.R.Civ.P. 8(a)(2);
Conley v. Gibson, 355 U.S. 41, 47 (1957)). To meet
this standard, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570; see also Iqbal, 556 U.S. at 678-80
(2009) (applying the plausibility standard articulated in
considering a Rule 12(b)(6) motion to dismiss, the Court must
construe the complaint in a light most favorable to the
plaintiff and accept all of her factual allegations as true.
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). However, the Court need not accept mere conclusory
statements or legal conclusions couched as factual
allegations. See Iqbal, 556 U.S. at 678.
ruling on a motion to dismiss, the Court may consider
“the Complaint and any exhibits attached thereto,
public records, items appearing in the record of the case and
exhibits attached to defendant's motion to dismiss so
long as they are referred to in the Complaint and are central
to the claims contained therein.” Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008). The Court may also consider
“documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007).
Rule of Civil Procedure 12(d) provides that, “[i]f, on
a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” The parties “must be given a reasonable
opportunity to present all the material that is pertinent to
the motion.” Fed.R.Civ.P. 12(d). A motion for summary