Seeger v. Marshalls of MA, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
VIRGINIA SEEGER,
Plaintiff,
v.
MARSHALLS OF MA, INC.,
Defendant.
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C.A. No. 23-cv-00314-MSM-LDA
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
Virginia Seeger (“Seeger”), proceeding pro se, has sued Marshalls of MA,
Inc. (“Marshalls”), alleging employment discrimination. 	Marshall’s Motion to Set
Aside Default and Motion to Dismiss are before the court for consideration. 	(ECF
Nos. 4, 7.)
I. 	BACKGROUND
Virginia 	Seeger 	is 	an 	employee 	at 	the 	Marshalls 	department 	store 	in
Narragansett, Rhode Island. She has worked at Marshalls for over twenty years in
a part-time capacity. 	After retiring from her full-time job with the United States
Postal Service after the pandemic, Ms. Seeger took on additional hours at Marshalls.
Ms. Seeger expected that her work responsibilities would include primarily “floor”
duties, but she was surprised and upset when she was staffed on the register most of
the time. Ms. Seeger communicated to her supervisors that she would prefer to work
on the floor because of an injury to her knee that made it difficult for her to stand for
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prolonged periods and for other reasons. Her supervisors told her to fill out a request
for accommodation form; Ms. Seeger objected. Instead, she brought a discrimination
charge against Marshalls before the Equal Employment Opportunity Commission
(“EEOC”) and the Rhode Island Commission for Human Rights (“RICHR”). 	The
EEOC and RICHR rejected Ms. Seeger’s charges and issued notices of right to sue.
Ms. Seeger then brought another charge, which the Commissions also rejected and
issued notices of right to sue. 	Ms. Seeger then sued Marshalls in Rhode Island
Superior court.
On May 30, 2023, Ms. Seeger served her Complaint on Marshalls through CT
Corporation, Marshalls’ registered agent for service. 	Due to “inadvertence and
difficult 	personal 	circumstances” 	impacting 	Marshalls’ 	in-house 	legal 	counsel,
Marshalls did not respond to the Complaint within the twenty days allowable under
state procedural rules. (ECF No. 1 at 3.) On June 29, 2023, twenty-eight days after
serving her Complaint, Ms. Seeger moved for entry of a default. 	On June 30, 2023,
the Clerk of the state court entered a default. On July 7, 2023, counsel for Marshalls
filed a notice of appearance with the state court, as well as a notice of intent to move
to set aside the default. 	On July 11, 2023, Marshalls filed the Motion to Set Aside
Default and Respond to Plaintiff’s Complaint, arguing that the default should be
vacated for good cause shown. 	On July 17, 2023, Ms. Seeger filed a response to
Marshalls’ motion. 	The response included information showing that several of Ms.
Seeger’s claims arise under federal law. On that basis, Marshalls removed the case
to federal court on July 28, 2023. 	Marshalls now moves to dismiss Ms. Seeger’s
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lawsuit under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 7.) Marshalls also
acknowledges that their Motion to Set Aside Default is still pending and requests
that the court adjudicate that motion. (ECF No. 4.)
II. 	DISCUSSSION
A. 	The Pending Motion to Set Aside Default
Marshalls’ Motion to Set Aside Default was pending before a Rhode Island
state court when this case was removed to federal court. 	Removal divests a state
court of its jurisdiction, and the federal court acquires full and exclusive jurisdiction
over the case as though it had been originally commenced in the federal court.
	See
Duncan v. Gegan, 101 U.S. 810, 812 (1879) (“The transfer of the suit from the state
court to the [federal] [c]ourt did not vacate what had been done in the state court
previous to the removal.
The [federal] [c]ourt, when a transfer is effected, takes the
case in the condition it was when the state court was deprived of its jurisdiction.”)
(emphasis added). By operation of law, all motions pending in state court at the time
of removal remain pending as if they had been filed in federal court.
	Id.;
see also
Murray v. Ford Motor Co., 770 F.2d 461, 464 (5th Cir. 1985) (a motion to set aside a
default judgment which was pending in state court prior to removal was a motion
that could be considered by the district court without “replead[ing] or mak[ing] the
motion again”).
Once a case is removed to federal court, further proceedings are governed by
the Federal Rules, not by state procedural rules.
See Fed. R. Civ. P. 81(c)(1);
see also
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of
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Alameda Cnty., 415 U.S. 423 (1974). Rule 55 allows a default judgment to be entered
against a party and provides the applicable procedure.
See Fed. R. Civ. P. 55. There
is a three-step process for securing a default judgment. First, a default occurs when
a party “has failed to plead or otherwise defend” against an action. 	Fed. R. Civ. P.
55(a). 	Next, an entry of default must be entered by the clerk when the default is
shown “by affidavit or otherwise.”
See id. Finally, the moving party may apply to the
clerk or the court for a default judgment after entry of default. Fed. R. Civ. P. 55(b).
Rule 55(c) provides that a court may set aside an entry of default for “good
cause.” Fed. R. Civ. P. 55(c). There is no mechanical formula for determining whether
good cause exists, and courts may consider a host of relevant factors.
	See KPS &
Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003). 	The three typically
considered are (1) whether the default was willful; (2) whether setting it aside would
prejudice the adversary; and (3) whether a meritorious defense is presented.
Id.;
see
also Coon v. Grenier, 867 F.2d 73,77 (1st Cir. 1989) (noting that these three factors
“comprise the indicia employed by most courts”). But that is not an exclusive list and
courts 	may 	consider 	other 	relevant 	factors, 	including 	“(4) 	the 	nature 	of 	the
Defendant’s explanation for the default; (5) the good faith of the parties; (6) the
amount of money involved; (7) [and] the timing of the motion [to set aside the entry
of default].”
	KPS, 318 F.3d at 12. 	Ultimately, the burden of demonstrating good
cause lies with the party seeking to set aside the default.
See Indigo Am., Inc. v. Big
Impressions, LLC, 597 F.3d 1, 3 (1st Cir. 2010).
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Marshalls has met its burden of demonstrating that there is good cause to set
aside the default. 	The default was not willful; at the time of service, Marshalls’
attorney was “overwhelmed attending to family medical issues and the death of a
friend.” 	(ECF No. 1-9 at 4.) 	Marshalls has presented a meritorious defense to Ms.
Seeger’s underlying claims. 	(
See ECF No. 7.) 	Setting aside the default does not
prejudice Ms. Seeger’s presentation of the case. Because the default was not willful,
because Marshalls has presented a meritorious defense, and because setting aside
the default does not prejudice Ms. Seeger, the Motion to Set Aside Default is
GRANTED.
B. 	The Motion to Dismiss
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper if the complaint
fails to satisfy Rule 8(a)(2)’s requirement of “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	A
“short and plain” statement must provide a defendant with “fair notice of what the ...
claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555. To show an
entitlement to relief, a complaint must contain enough factual material “to raise a
right to relief above the speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
Id.;
see also Iqbal, 556 U.S. at 679.
Affirmative defenses, such as the statute of limitations, may be raised in a
motion to dismiss under Rule 12(b)(6), provided that the facts establishing the
defense are clear on the face of the plaintiff's pleadings.
Trans–Spec Truck Serv., Inc.
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v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir. 2008). 	When the dates included in a
complaint show that the limitations period has been exceeded and the complaint “fails
to sketch a factual predicate that would provide a basis for tolling the statute of
limitations,” dismissal pursuant to Rule 12(b)(6) is appropriate.
	Abdallah v. Bain
Cap. LLC, 752 F.3d 114, 119 (1st Cir. 2014).
Marshalls moves to dismiss Ms. Seeger’s state and federal law claims on the
basis that the claims are time barred. A plaintiff asserting federal discrimination or
retaliation claims, whether under the Age Discrimination in Employment Act, the
Americans with Disabilities Act, or Title VII of the 1964 Civil Rights Act, must file
suit within ninety days of receiving a notice of right to sue letter from the EEOC. 42
U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a); 29 U.S.C. § 626(e);
see also Abraham v.
Woods Hole Oceanographic Inst., 553 F.3d 114, 119 (1st Cir. 2009);
Loubriel v. Fondo
del Seguro del Estado, 694 F.3d 139, 142 (1st Cir. 2012) (noting that the Americans
with Disabilities Act is governed by the procedural requirements of Title VII);
Perez-
Abreu v. Metropol Hato Rey LLC, 5 F.4th 89, 91 (1st Cir. 2021) (noting that Age
Discrimination in Employment Act claims must be filed within 90 days after receipt
of notice of right to sue). 	The same requirement applies to Ms. Seeger’s state-law
claims brought under the Fair Employment Practices Act. 	R.I.G.L. § 28-5-24-.1(a).
These 	requirements 	are 	strict: 	“In 	the 	absence 	of 	a 	recognized 	equitable
consideration, the court cannot extend the limitations period by even one day.”
Rice
v. New Eng. Coll., 676 F.2d 9, 11 (1st Cir. 1982).
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Ms. Seeger brought two charges before the RICHR and the EEOC. The RICHR
issued a Dismissal and Notice of Right to Sue for Ms. Seeger’s First Charge on
June 28, 2022. (ECF No. 6-5 at 5.) 	Ms. Seeger had ninety days from receipt of that
notice to sue in Rhode Island state court based on the allegations included in the First
Charge. 	The Complaint taken on its face shows that she did not do so. The RICHR
issued a Dismissal and Notice of Right to Sue pertaining to Ms. Seeger’s Second
Charge on February 14, 2023. (ECF No. 6-6 at 5.) Ms. Seeger had ninety days from
receipt of that notice to sue in Rhode Island state court based on the allegations
included in the Second Charge. 	Again, the Complaint taken on its face shows that
she did not do so. The defendant’s Motion to Dismiss is GRANTED as to Ms. Seeger’s
state-law claims.
The EEOC issued a notice of right to sue for Ms. Seeger’s First Charge on
August 3, 2022. (ECF No. 7-1 at 2.) Ms. Seeger had ninety days from receipt of that
notice to sue in state or federal court based on the federal law claims included in the
First Charge. 	The Complaint taken on its face shows that she did not do so. 	The
EEOC issued a notice of right to sue for Ms. Seeger’s Second Charge on March 17,
2023. (ECF No. 9 at 7). Ms. Seeger had ninety days from receipt of that notice to sue
in state or federal court based on the federal law claims included in that charge. Ms.
Seeger filed suit in Rhode Island state court on May 25, 2023, within ninety days of
its receipt. (ECF No. 6 at 2.) Because this suit was filed on May 25, 2023, less than
ninety days after Ms. Seeger received notice of right to sue from the EEOC,
dismissing Ms. Seeger’s federal law claims as untimely is only proper if the Second
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Charge was duplicative of the First.
See Rivera-Diaz v. Humana Ins. of Puerto Rico,
Inc., 748 F.3d 387, 391 (1st Cir. 2014) (“[I]f the proponent of a discrimination claim
fails to sue within the specified ninety-day period, his claim expires and is not
resuscitated by the filing of a second administrative charge [addressing the same
conduct].”).
Marshalls 	asserts 	the 	Complaint 	shows 	that 	Ms. 	Seeger’s 	failure 	to
accommodate, age, and disability-based discrimination claims arising under federal
law were presented in the First Charge. 	(ECF No. 7 at 9.) 	The Court agrees; Ms.
Seeger’s claims re-presented in the Second Charge are duplicative.
	Compare, e.g.,
(ECF No. 1-5 at 8) (alleging that Ms. Seeger was compelled to work the register even
though she “spoke with [her supervisor] on 9/14/21 … 	[and] tol[d] her [she] would
bring in a letter from [her] Orthopedic Surgeon … stating that [she] could not stand
at [the] cash register for more than [two] hours but [could] walk around to perform
[her] duties on sales floor”)
with (ECF No. 1-6 at 8) (alleging that Marshalls “was
aware of [Ms. Seeger’s] knee injury and that [she] needed an accommodation of only
being on the register for short periods of time, but … continuously chose [her] to go
to the registers for long periods of time, even though there were other coworkers not
within [her] protected class that could have been chosen”). 	Because Ms. Seeger’s
federal law failure to accommodate, age, and disability-based discrimination claims
included in the Second Charge were repetitions of the allegations included in the First
The 	Charge, 	the 	defendant’s 	Motion 	to 	Dismiss 	those 	claims 	as 	untimely 	is
GRANTED.
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III. 	CONCLUSION
Defendant’s 	Motion 	to 	Set 	Aside 	Default 	(ECF 	No. 4) 	is 	GRANTED.
Defendant’s Motion to Dismiss (ECF No. 7) is GRANTED as to Ms. Seeger’s state-law
claims and GRANTED as to Ms. Seeger’s federal law failure to accommodate, age,
and disability-based discrimination claims. The court notes that Ms. Seeger’s federal
law retaliation claim survives, as Marshalls stated in its Motion to Dismiss that it
intends to file a later dispositive motion to address that claim. (ECF No. 7 at 9.)
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
January 12, 2024
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