United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT  AND GRANTING
DEFENDANTS' MOTION TO DISMISS 
STEPHEN J. MURPHY, III United States District Judge
16, 2015, pro se plaintiff Surrinder Arora filed a four-count
complaint in Oakland County Circuit Court against defendants
Henry Ford Health System, Henry Ford System Plan for STD
Benefits, Henry Ford System Plan for LTD Benefits, Gerard van
Grinsven, Debbie Chapman, and Bea Page (collectively
"HFHS"), Life Insurance Company of North America
("LINA"), and five John Does ("Doe
Defendants"). ECF 1-1. HFHS removed the action to the
Court on September 2, 2015. ECF 1.
November 12, 2015, the Court dismissed LINA from the case.
ECF 24. Arora filed a Motion for Leave to File First Amended
Complaint on November 23, 2015. ECF 31. The Court granted the
motion on September 27, 2016, ECF 56, and HFHS filed a Motion
to Dismiss on November 1, 2016, ECF 58. On November 22, 2016,
Arora responded to the Motion to Dismiss, ECF 59, and filed a
Motion for Leave to File Second Amended Complaint, ECF 60.
The Court will deny Arora's Motion for Leave to File
Second Amended Complaint and will grant HFHS's Motion to
about July 1980, HFHS allegedly offered Arora a position as a
medical technologist. ECF 60, PgID 1895. The terms of
employment were allegedly contained in the terms and
conditions of HFHS's internal policies and procedures.
ECF 60, PgID 1896-97. Arora performed her duties effectively
and received positive reviews. ECF 60, PgID 1897; see
also ECF 57, 57-1.
April 3, 2009, Arora underwent scheduled surgery at HFHS. ECF
60, PgID 1897. The surgery allegedly left Arora disabled.
Id. As result of the disability, April 2, 2009 was
her final day of work. Id. Arora sought, and
received, a "Disability Program Process Summary"
from HFHS's Human Resources ("HR") Department.
Id. at 1898, 1931. On May 5, 2009, Arora applied for
a Medical Leave of Absence ("MLOA") with the start
date of the MLOA as the date of her surgery, April 3, 2009.
ECF 60, PgID 1929. She allegedly never received any
information about the Family and Medical Leave Act
("FMLA") and was unaware of her eligibility status
under the FMLA. Id. at 1902.
on June 17, 2009, Arora's physician allegedly authorized
her to return to work on a part-time basis. Id. at
1899. Arora then contacted the secretary of the lab where she
had worked and Denise Chapman, her manager. Id. The
next day, June 18, 2009, Arora's supervisor, Linda
Cardine, allegedly informed Arora that she had been scheduled
for part-time work on June 26 and July 3, 4, and 5, 2009.
Id. For one month, Arora could allegedly maintain
her full-time status despite only working two days a week
because she had accumulated 96 "CTO" hours.
Id. at 1900. On June 24, 2009, however, Chapman
allegedly left a voicemail for Arora; she was told not to
come in to work on June 26, id. at 1899-1900, and
her employment ended for good that day. Id. at
result of the termination, Arora's "health,
emotional and financial state" were "completely
disrupted." Id. Arora allegedly never received
"12 weeks of unpaid leave" to which she was
entitled. Id. at 1901. Arora's age-she was 62 at
the time-and her "deep emotional, physical, mental and
financial shock and extreme stress" rendered her unable
to find even part-time work. Id. at 1900-01. Arora
allegedly attempted to appeal her termination decision
multiple times, but was "forced into a non-voluntary
retirement" in April 2010. Id. at 1902. The
First Amended Complaint contained eight claims: three beach
of contract counts, and one claim each of fraud, negligence,
intentional infliction of emotional distress, conspiracy, and
respondeat superior. ECF 57. Arora's Motion for Leave to
File Second Amended Complaint alleges "significant
factual developments that have occurred" since the
original filing and the First Amended
Complaint. ECF 60, PgID 1884. The Second Amended
Complaint contains eight slightly modified claims: two counts
each of fraud and breach of contract, and one count each of
negligence, intentional infliction of emotional distress,
conspiracy, and damages under respondeat superior. ECF 60.
to Federal Rule of Civil Procedure 15(a)(2), a court should
"freely give leave" for a party to file an amended
complaint "when justice so requires." District
courts can, however, deny a motion for leave to amend on the
basis of "undue delay, bad faith or dilatory motive ...
[or] futility of amendment." Prater v. Ohio Educ.
Ass'n, 505 F.3d 437, 445 (6th Cir. 2007) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
"Amending would be futile if a proposed amendment would
not survive a motion to dismiss." SFS Check, LLC v.
First Bank of Delaware, 774 F.3d 351, 355 (6th Cir.
2014). Accordingly, the proposed amended pleading must
"raise a right to relief above the speculative
level" and "state a claim to relief that is
plausible on its face." Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). The plaintiff is obliged to provide "more than
labels and conclusions[.]" Twombly, 550 U.S. at
555. Courts "are not bound to accept as true a legal
conclusion couched as a factual allegation[.]"
Id. (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
The Proposed Second Amended Complaint is Futile on its
asserts that the proposed Second Amended Complaint does not
allege "any claims against LINA." ECF 60, PgID
1894. But she has nevertheless included LINA as a
"necessary party" because "LINA has the
documents and information as to wrongful acts and
omissions" of HFHS and its employees. Id. In
Count Seven, Arora alleges in a conclusory manner that HFHS
conspired with LINA to deprive Arora of "Accommodation
Services." Id. By including LINA, a previously
dismissed party, in her proposed Second Amended Complaint,
the proposed complaint is futile on its face.
recognizing that Arora is a pro se plaintiff, "necessary
party" is a legal term of art, and courts should freely
grant leave to amend, the Court will address the other claims
advanced by Arora in the proposed Second Amended Complaint.
The Proposed Second Amended Complaint is Futile on the
Arora's first fraud count fails to state a claim upon
which relief can be granted.
alleges that HFHS employees "intentionally, illegally,
maliciously and fraudulently destroyed" personnel
documents dated after April 2009. ECF 60, PgID 1907. She
further alleges that supervisory employees knew or should
have known of the destruction. Id. While Arora
captioned the claim as "fraudulent destruction, "
she references two sections of ERISA for authoritative
support. Id. at 1906-07.
alleging fraud, a party "must state with particularity
the circumstances constituting fraud[.]" Fed.R.Civ.P.
9(b). Moreover, "[a]n allegation of time or place is
material when testing the sufficiency of a pleading."
Fed.R.Civ.P. 9(f). Arora does not allege particularized
circumstances constituting alleged fraud. She does not
specify the time or place of any alleged wrongdoing. The
allegations amount to no more than "naked assertions
devoid of further factual enhancement" and are therefore
insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation omitted). Count One fails to state
a claim for which relief can be granted. Amendment is futile.
Arora's second fraud count fails to state a claim upon
which relief can be granted.
alleges that defendants "fraudulently concealed their
interference with Plaintiff's rights under FMLA."
ECF 60, PgID 1910. Arora further alleges that she "was
an eligible employee under the FMLA; Defendant-employer HFHS
was subject to the requirements of the FMLA; Plaintiff was
entitled to leave under the FMLA; she kept HFHS informed in
[a] timely manner as to her continued disability from April
3, 2009 and she was denied the benefits to which she was
entitled under the ...