Free Reply Brief - District Court of Delaware - Delaware

Case 1:07-cv-00078-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SAMI ALMAKHADHI,

Plaintiff,
v. : : : : : : : : : :

No. 1:07-cv-00078-JJF

DELAWARE PARK LLC,
Defendant.

PLAINTIFF SAMI ALMAKHADHI'S REPLY TO DELAWARE PARK LLC'S PARTIAL OPPOSITION TO HIS MOTION FOR LEAVE TO AMEND HIS PRO SE COMPLAINT I.
INTRODUCTION On October 2, 2007, Sami Almakhadhi submitted his Motion for Leave to Amend his Pro

Se Complaint after Defendant Delaware Park, LLC, ("Delaware Park") refused to provide its consent.1 On October 22, 2007, Delaware Park filed its Partial Opposition to Mr. Almakhadhi's motion. Specifically, Delaware Park does not oppose the addition of: Count V; the Family and Medical Leave Act retaliation portion of Count VII; or Count VIII .
Delaware Park does, however, object to the inclusion of hostile work environment claims

in Counts I and III, all of Mr. Almakhadhi's state law claims (Counts II; Count IV; and VI), and

Delaware Park implies that it had only a short time to consider Mr. Almakhadhi's proposed amendments. This is not true. Counsel for Mr. Almakhadhi provided details of his proposed amendments to Delaware Park's counsel on several occasions both by telephone and e-mail. Indeed, for more than a week before the filing of Mr. Almakhadhi's Motion for Leave to Amend, the undersigned engaged in vigorous efforts to garner Delaware Park's consent, including a discussion of the factual and legal bases for the claims.
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the Family and Medical Leave Act Improper Denial of Leave claim in Count VII. Delaware Park asserts that these claims are futile and prejudicial. Mr. Almakhadhi respectfully disagrees. II. REPLY A. Mr. Almakhadhi's Hostile Work Environment Claims in Counts I and III Are Well Pled and Reasonably Within the Scope of his Charge of Discrimination.
Delaware Park goes to great pains, over many pages, to argue that Mr. Almakhadhi's

hostile work environment claims are futile. Unfortunately, Delaware Park misses the salient procedural point, which is that Mr. Almakhadhi's Motion is to amend his Complaint--he did not move for summary judgment. At the time Mr. Almakhadhi's Motion was filed, and Delaware Park responded, written discovery was not yet complete. Indeed, there are still outstanding discovery requests to Delaware Park. Delaware Park's implications that the factual inquiries in this case are at an end are simply mistaken, as well as procedurally improper.
As the Supreme Court recently reiterated in Erickson v. Pardus: Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, . . . 2007 U.S. LEXIS 5901, *21 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). 127 S. Ct. 2197, 2200 (U.S. 2007). To the extent further development of the allegations is required, such additional details are the appropriate subject of discovery. If discovery does not show the facts to support a plaintiff's allegations, then summary judgment is the appropriate remedy.
Accordingly, to amend his Complaint Mr. Almakhadhi is not required to prove that there

is no genuine issue of material fact about his hostile work environment claims, as Delaware Park seeks to have him do. The Rules require only that Mr. Almakhadhi allege sufficient facts to give Delaware Park fair notice of his claims. He has done so in his Amended Complaint.

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Moreover, contrary to Delaware Park's assertions, Mr. Almakhadhi exhausted his

administrative remedies on his hostile work environment claims. Indeed, in response to the Department of Labor's ("DOL") investigation, Delaware Park produced records discussing Mr. Almakhadhi's allegations of a hostile work environment. (See, e.g., DP0033-DP0034, attached as Exhibit A.) Accordingly, Mr. Almakhadhi's hostile work environment allegations were within the reasonable scope of the DOL's investigation.
Mr. Almkahadhi's allegations are sufficient for the purposes of notice pleading under

Rule 8, and are clearly not futile based upon Delaware Park's own production of documents. "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, this Court should grant Mr. Almakhadhi leave to amend his race and national origin Counts to clarify his claims for hostile work environment. 2 B. Mr. Almakhadhi's FMLA Denial of Leave Claim is Not Futile.
In its argument against part of Mr. Almakhadhi's FMLA claim, Delaware Park again

misapprehends the procedural posture of this case in arguing that it provided leave "substantially in excess" of that required by the FMLA. This is not the appropriate time to present evidence refuting Delaware Park's assertion (nor can Mr. Almakhadhi reasonably be expected to do so given the five-page limit of this Rely). Instead, Delaware Park's argument on this Count should be stricken because the parties are still engaged in discovery and the Court should grant Mr. Almakhadhi's request for leave to amend to include this claim.

The cases cited by Delaware Park support Mr. Almakhadhi's position: Anatol v. Perry, 82 F.3d 1291 (3d Cir. 1996), Revis v. Slocomb Indus., Inc., 814 F. Supp. 1209 (D.Del. 1998); Ramon v AT&T Broadband, 195 Fed. Appx. 860 (11th Cir. 2006) and Moon v. Del. River & Bay Auth., 2006 WL 462551 (D.Del. Feb. 24, 2006) were all cases properly decided at summary judgment, and not on a motion to dismiss or otherwise using the futility standard.
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Even if the Court does not strike this portion of Delaware Park's argument, it is clear

that Mr. Almakhadhi has satisfied his pleading requirements and that his amendment is not futile. To wit, in paragraphs 30 through 32 of his proposed Amended Complaint, Mr. Almakhadhi alleges that he had additional leave time available because Delaware Park sent him home without further direction. Delaware Park never informed Mr. Almakhadhi that it was using his FMLA leave, and Delaware Park never alerted Mr. Almakhadhi to any absence issues. Indeed, even in its lengthy argument on this count Delaware Park points to no evidence that it informed Mr. Almakhadhi that it was using his FMLA leave or that the absences required and imposed by the company would jeopardize his job. Accordingly, his claim is not futile and the Court should grant Mr. Almakhadhi's request for leave to amend to include this claim. C. Mr. Almakhadhi Withdraws his State Law Discrimination Claims.
Based upon the holding in Phillips v. Household Finance Corp., 2007 U.S. Dist. LEXIS

46058 (No. 06-100-JJF, June 25, 2007), Mr. Almakhadhi respectfully withdraws Counts II, IV, and VI without prejudice.3

Mr. Almakhadhi respectfully offers to further brief this issue if the Court so orders. Mr. Almakhadhi respectfully submits that the implications of the recently enacted 19 Del. C. § 714(c) are unclear. Clearly Delaware law requires a plaintiff to "elect a Delaware or federal forum to prosecute the employment discrimination cause of action so as to avoid unnecessary costs, delays and duplicative litigation." Likewise, clearly "A charging party is barred by this election of remedies from filing cases in both Superior Court and the federal forum." 19 Del. C. § 714(c) (emphasis added). Mr. Almakhadhi, however, is not seeking simultaneously to pursue his claims in state court, nor is he seeking a double recovery. Instead, by including the state law claims Mr. Almakhadhi is merely exercising his Rule 8 right to plead in the alternative. The District Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367, and other than issues of comity, the State of Delaware has no authority to limit this Court's jurisdiction or authority.
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III. CONCLUSION
Delaware Park has failed to meet its burden of showing that Mr. Almakhadhi's hostile

work environment claims in Counts I and III and his FMLA denial of leave claim in Count VII are either futile or prejudicial. Accordingly, Mr. Almakhadhi respectfully requests that this Court deny Delaware Park's Opposition and grant him leave to include those claims.4 Mr. Almakhadhi ought to be afforded an opportunity to test his claim on the merits.

Respectfully submitted, /s/ Frank Conley Frank J. Conley, Esquire Pro hac vice The Conley Firm 7715 Cheltenham Avenue, Suite 133 Philadelphia, PA 19118 (215) 836-4789 /s/ Glenn Brown Glenn Brown, Esquire Real World Law 916 N. Union St #2 Wilmington, DE 19805 (302) 225-8340 Date: 1 November 2007

Delaware Park does not object to the discrimination, harassment, or retaliation portions of Counts I and III. Nor does Delaware Park object to the retaliation portion of Count VII. Delaware Park raised no objections to Count V or Count VIII. Mr. Almakhadhi withdraws, without prejudice, Counts II, IV, and VI.
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