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Tani v. FPL/Next Era Energy
Citations: 811 F. Supp. 2d 1004; 2011 U.S. Dist. LEXIS 105206; 2011 WL 4346685Docket: Civ. No. 10-860-LPS
Court: District Court, D. Delaware; September 15, 2011; Federal District Court
Plaintiff Kess Tani, representing himself, initiated a civil case alleging employment discrimination and related state claims. The court is currently reviewing multiple motions, including Tani's requests for default against Florida Power and Light (FPL, also referred to as NextEraEnergy) and Myriad Technical Service Corp. (Myriad Corp.), as well as Tani’s motion for default judgment against FPL. Myriad Corp. and its representative, Mirih Dash, along with FPL, oppose these motions. Additionally, Myriad has filed motions to dismiss or for summary judgment, while Guidant Group, Inc. also seeks dismissal. In response, Tani has filed motions to strike Guidant's dismissal motion and for criminal referral of the defendants to federal authorities. The complaint revolves around an employment contract Tani claims he entered into with the defendants, which involved work at a nuclear power facility in Palo, Iowa. Tani alleges that he was instructed to travel to Iowa under the pretense that all background checks were completed and that the contract was valid. Upon arrival, he reported deficiencies at the power plant shortly after starting work. Notably, there is confusion regarding the naming of defendants, as Tani’s complaint merges several entities under the name FPL/NextEraEnergy, while the court clarifies that there is no corporate entity by that precise name. Tani describes FPL/NextEraEnergy, Guidant, and Myriad as companies involved in power generation and staffing services. On May 25, 2010, Defendants mandated that Plaintiff provide pre-employment medical records dating back to age eighteen as a condition for his contract with FPL/NextEra Energy. Plaintiff argued that this requirement was discriminatory, noting that white employees were not subjected to the same demand, which was not stipulated in his contract or company policies. Following his refusal to comply, Plaintiff's contract was terminated immediately. He contends that the termination was a direct consequence of his refusal to provide the records, rather than any performance issues or violations of laws or policies. Additionally, Plaintiff claims he engaged in whistleblowing activities and experienced racial profiling and discrimination. The Complaint outlines fourteen counts, including: 1. Fraud and misrepresentation violating multiple legal statutes and constitutional amendments. 2. Unlawful demand for protected medical records, breaching several civil rights laws and constitutional protections. 3. Conspiracy to blacklist/libel, violating federal statutes and constitutional amendments. 4. Civil and criminal blacklisting/libel related to employment discrimination laws. 5. Termination without good cause, in violation of numerous statutory and constitutional provisions. 6. Intentional racial profiling and discrimination, breaching civil rights statutes. 7. Unilateral interference and breach of contract, violating contract law and constitutional rights. 8. Violations of privacy rights under federal law and constitutional amendments. 9. Deprivation of rights as per civil rights legislation and constitutional protections. 10. Fraud perpetrated through internet, mail, and wire communications, violating federal criminal statutes. Each count references specific legal violations and constitutional rights implicated in the Plaintiff's claims. Claims made by the plaintiff include reckless disregard for truth and reputation within the nuclear industry, infliction of emotional distress, obstruction of justice, and harm to reputation, all in violation of various statutory provisions and constitutional amendments. The plaintiff seeks injunctive relief, as well as compensatory and punitive damages. Regarding service of process, the plaintiff asserts that FPL (NextEraEnergy) and Myriad were properly served on specified dates, although CT Corporation could not find FPL in its records. Evidence of service was provided through return receipts and a USPS delivery confirmation, albeit with some issues regarding clarity and completeness. Myriad’s counsel entered an appearance and requested more time to respond, while FPL has filed a motion to dismiss based on lack of personal jurisdiction and claims of improper service. The process for obtaining a default judgment requires first requesting that the Clerk enter default against a non-responding party, as outlined in Federal Rule of Civil Procedure 55(a). Timely motions to dismiss can prevent entry of default. Ultimately, the court has denied the plaintiff's request for default, and Myriad's request for an extension to respond was granted. FPL contends that the Plaintiff mistakenly named FPL/NextEraEnergy as a defendant since the latter does not exist and has filed a motion to dismiss for lack of personal jurisdiction. The Court finds that the Plaintiff has not properly served any defendant associated with FPL, rendering the motion for default against Myriad inappropriate and the motion for default moot concerning FPL. The Court cites case law indicating that insufficient service of process does not confer personal jurisdiction, and defendants do not waive this defense by failing to raise it timely. Under Federal Rule of Civil Procedure 12(b)(2), the Court must dismiss a case if it lacks personal jurisdiction over a defendant. This involves a two-part analysis: assessing the state’s long-arm statute and determining if exercising jurisdiction complies with the Due Process Clause, which requires "minimum contacts" with the forum state. The burden is on the Plaintiff to demonstrate sufficient minimum contacts with evidence. FPL argues for dismissal based on insufficient service and lack of minimum contacts with Delaware, while the Plaintiff asserts that FPL misrepresents its corporate registration and has established minimum contacts. FPL further clarifies that there is no corporate entity named FPL/NextEraEnergy, presuming the Plaintiff intended to name it directly. J.E. Leon's declaration, submitted with FPL's motion, confirms that FPL is a Florida corporation with no presence or business operations in Delaware. Specifically, FPL lacks an office, business license, agent for service of process, telephone number, bank account, employees, or contracts in Delaware. In response, the Plaintiff presented a Securities Act registration statement listing FPL Group entities with Florida and Delaware associations, job offerings in Delaware, and details from the Delaware Division of Corporations regarding statutory trusts and dissolved Delaware corporations related to NextEra Energy. FPL countered that the Plaintiff failed to provide evidence of the entity sued (FPL/NextEraEnergy) and highlighted that the mentioned Delaware statutory trusts are irrelevant due to lack of employment or service attempts. It also noted that the Delaware entity NextEra Energy, Inc. was dissolved in 2010 and identified Florida corporations with similar names, indicating that NextEra Capital Holdings, Inc. is inactive in Delaware. The document emphasizes the need to evaluate personal jurisdiction under Delaware’s long-arm statute, distinguishing between specific and general jurisdiction. Specific jurisdiction requires purposeful activity directed at Delaware residents related to the legal action, while general jurisdiction necessitates "continuous and substantial" contacts with Delaware, which FPL does not have. The criteria for establishing general jurisdiction include longstanding business activity in the state, which FPL lacks. The Complaint does not establish that the Plaintiff's injury resulted from actions occurring in Delaware, failing to meet any criteria under Delaware’s long-arm statute for serving FPL. The Plaintiff has not provided evidence that FPL engaged in conduct within Delaware or conducted business there regularly. Consequently, the Court lacks both specific and general jurisdiction over FPL, leading to the potential dismissal of the action against them. However, given the Plaintiff is proceeding pro se and may have incorrectly named the corporate defendant, the Court allows the Plaintiff to amend the Complaint to identify the correct entity associated with FPL or NextEraEnergy, in line with Fed. R. Civ. P. 15(a), which promotes justice. The excerpt also outlines the standard for reviewing a motion to dismiss under Rule 12(b)(6), stating that a complaint can be dismissed for failure to state a claim upon which relief can be granted. The court must assume all well-pleaded allegations are true and view them favorably towards the Plaintiff. The Plaintiff must articulate sufficient facts to support a plausible claim for relief, rather than merely reciting elements of a cause of action. Pro se pleadings are held to less stringent standards. The court typically considers only allegations in the complaint and related documents when deciding on a motion to dismiss. Myriad argues for dismissal based on the lack of legally cognizable claims, repetitive allegations against all defendants, absence of specific claims of wrongdoing, and the inadequacy of exhibits attached to the Complaint in suggesting any misconduct by Myriad. Guidant seeks dismissal of the Plaintiff's claims on several grounds: 1. **Employment Discrimination**: The Plaintiff fails to identify an employer, relies on nuclear regulations that justify his termination, and denies being an employee. Individual liability under Title VII and the ADA is not applicable, and the Plaintiff did not exhaust his administrative remedies. Discrimination claims require the Plaintiff to show he is a member of a protected class, qualified for his position, experienced an adverse employment action, and that the circumstances suggest unlawful discrimination, which he has not done. 2. **Fraud Claim**: The Complaint lacks sufficient factual allegations to support a fraud claim. 3. **Breach of Contract**: There is insufficient factual support for this claim. 4. **Defamation Claim**: The Complaint does not allege facts sufficient to support a defamation claim. 5. **Criminal and Constitutional Violations**: Such claims are deemed legally unsupportable. 6. **Service Issues**: Service on individual Guidant defendants was improper, rendering it ineffective. The motion for dismissal also emphasizes that the Plaintiff's contradictory characterization of his employment status (as both an employee and an independent contractor) undermines his claims under Title VII and the ADA, which do not protect independent contractors. The allegations of discrimination regarding race and disability are presented in a conclusory manner, lacking the necessary factual basis to establish a plausible claim, and therefore do not meet the pleading requirements under Rule 8(a). The Court has granted the Motions to Dismiss the employment discrimination claims but allows the Plaintiff to amend the Title VII race discrimination claim due to potential viability suggested by the facts. Although the Complaint lacks explicit mention of a disability, it references the Plaintiff's lengthy hospitalization, indicating possible grounds for an ADA claim, which the Court also permits the Plaintiff to amend. The Court cites Phillips v. County of Allegheny, establishing that if a complaint is subject to 12(b)(6) dismissal, a curative amendment is generally allowed unless it would be inequitable or futile. Regarding individual defendants, the Court grants Guidant’s motion to dismiss Title VII and ADA claims against them, as individuals cannot be held liable under these statutes according to Sheridan v. E.I. DuPont de Nemours and Co. and Koslow v. Pennsylvania. The Court dismisses Title VII and ADA claims for failure to exhaust administrative remedies. Despite the Plaintiff's assertion of being an independent contractor and not needing to exhaust those remedies, the Court emphasizes that a plaintiff must exhaust administrative avenues before filing suit, as per 42 U.S.C. 2000e-16(c), and that the absence of a right-to-sue letter or evidence of a request for one necessitates dismissal. The Plaintiff's position on being an independent contractor is deemed unmeritorious, but he is granted leave to amend these claims. Lastly, the Court notes that several counts allege violations of 42 U.S.C. 1981 and 1982, highlighting that to state a claim under Section 1981, the Plaintiff must demonstrate membership in a racial minority, intent to discriminate on that basis, and discrimination related to contract rights. Section 1982 establishes that all U.S. citizens have equal rights to inherit, purchase, lease, sell, hold, and convey property, akin to those enjoyed by white citizens. To succeed in a claim under this statute, a plaintiff must specifically allege: 1) racial animus by the defendant; 2) intentional discrimination; and 3) that the defendant's actions deprived the plaintiff of rights based on race. The allegations in the Complaint fail to meet these requirements, as they do not specify discriminatory acts by individual defendants and assert that "Defendants" required medical records from the plaintiff without similar requirements for white employees. Consequently, the Court will dismiss the claims under Sections 1981 and 1982, allowing the plaintiff to amend the 1981 claim but deeming any amendment to the 1982 claim futile. Regarding 42 U.S.C. 5851, part of the Energy Reorganization Act (ERA), which protects whistleblowers from discrimination, the plaintiff must prove: 1) the employer is covered by the act; 2) the plaintiff engaged in protected activity; 3) the plaintiff suffered adverse action; and 4) a causal inference between the two. Proximity in time can suggest causation. The ERA requires complaints to be filed with the Secretary of Labor within 180 days of the alleged violation, with appeals available for adverse decisions. Although the plaintiff asserts termination following reports of nuclear deficiencies, the Complaint lacks clarity on the employment relationship and whether the defendants are covered by the ERA. Additionally, it does not confirm if the plaintiff filed claims with the Secretary of Labor. Therefore, the Court will dismiss the ERA claims but permit the plaintiff to amend them. Guidant's motion to dismiss Plaintiff's constitutional claims is granted due to the failure to demonstrate that Defendants were state actors or acted under state law, which is necessary for such claims under the Fourth, Fifth, Sixth, and Fourteenth Amendments. The Fourth Amendment does not apply to private searches or seizures; the Fifth Amendment restricts only the federal government; the Sixth Amendment does not pertain to civil cases; and the Fourteenth Amendment is directed at state actions. Thus, Plaintiff's claims lack merit. Additionally, the motion to dismiss the federal criminal claims under 18 U.S.C. 241, 371, 1341, and 1343 is also granted. Individuals do not have a constitutional right to compel prosecution, and these criminal statutes do not allow for private causes of action, as established in several case precedents. Furthermore, while Plaintiff cites 18 U.S.C. 1514A from the Sarbanes-Oxley Act concerning whistleblower protections, the focus of this section is on employees of publicly-traded companies experiencing retaliation for reporting violations related to specific types of fraud. The provisions protect employees from discrimination due to lawful acts assisting in investigations of such violations. Protected communications concerning fraud against shareholders must be clearly related to the statute providing protection. To succeed under the relevant statute, an employee must demonstrate: (1) engagement in protected activity; (2) employer awareness of this activity; (3) suffering an unfavorable personnel action; and (4) that the protected activity was a contributing factor to the unfavorable action. The plaintiff's claims under 18 U.S.C. § 1514A are deemed deficient due to a lack of allegations that the defendants are publicly traded companies or that the plaintiff engaged in protected communications. Furthermore, the plaintiff must first file a complaint with OSHA before pursuing a claim under the Sarbanes-Oxley Act, which was not done here; hence, the court will dismiss this claim but allow the plaintiff an opportunity to amend. Regarding the conspiracy claim under 42 U.S.C. § 1985(3), the plaintiff's allegations are insufficient to show that the defendants acted with the intent to deprive him of equal protection under the law. The complaint lacks specific allegations of an agreement among defendants to discriminate against him or violate his constitutional rights. Consequently, this claim will also be dismissed, with permission for amendment. In the context of the fraud in the inducement claim, the defendant seeks dismissal, arguing the plaintiff has not adequately supported the claim with relevant facts. Under Delaware law, to establish fraud in the inducement, the plaintiff must particularly allege: (1) a false representation of material fact, and (2) the defendant's knowledge or belief regarding the falsity of the representation, or reckless indifference to its truth. The Complaint fails to adequately allege the elements necessary for a claim of fraud in the inducement, which include the defendant's intent to induce, the plaintiff's justifiable reliance on the representation, and resulting damages. It lacks specificity regarding which Defendants were involved and does not sufficiently allege false misrepresentation or the Defendants' knowledge of the falsity. The plaintiff's claim arises from being offered employment and subsequently being required to submit medical records, which led to termination upon refusal. As such, the Court grants the Motions to Dismiss this claim but allows the plaintiff a chance to amend it. Regarding the breach of contract claim, the plaintiff asserts he had an employment contract that was breached on May 25, 2010, yet no contract copy was submitted with the Complaint. Myriad argues the plaintiff was aware of the employment requirements, negating any claims of misrepresentation. The allegations do not clarify which Defendant breached the contract or whether the requirement for medical records was a contractual obligation. The elements necessary for a breach of contract claim—existence of a contract, breach of an obligation, and resultant damage—are not sufficiently pled. Consequently, the Court will also grant the Motions to Dismiss this claim, with leave for the plaintiff to amend. Plaintiff alleges defamation and libel by unnamed Defendants, claiming he was "blacklisted" by being included on a list barring him from working at USNRC Licensed Nuclear Facilities. Myriad seeks dismissal due to the lack of factual support in the Complaint, while Guidant also argues insufficient factual allegations. Plaintiff asserts that Exhibit 3 demonstrates he was defamed and blacklisted, and that Defendants are vicariously liable. Under Delaware law, a defamation claim requires proof of a defamatory statement about the plaintiff, published to others, resulting in injury. The Complaint fails to identify the defamer, the relevant communication, or the injury suffered. Even if the statement is defamatory, it does not specify third parties who received it, leading to the conclusion that the claim does not merit relief, though Plaintiff may amend the claim. Additionally, regarding the claim for intentional infliction of emotional distress, Myriad argues for dismissal, stating there are no facts linking it to the request for Plaintiff's medical records. Plaintiff contends that Myriad misunderstands the liabilities of agents to independent contractors. Delaware law requires proof of extreme and outrageous conduct causing severe emotional distress. The Complaint lacks sufficient facts to support this claim against Myriad. The Complaint's claim for intentional infliction of emotional distress lacks sufficient factual support, failing to demonstrate that the Defendants’ actions were extreme or that the Plaintiff experienced severe emotional distress necessary for an actionable claim. Nonetheless, the Plaintiff is permitted to amend this claim. Regarding civil conspiracy, the Plaintiff must establish: (1) a combination of two or more persons, (2) an unlawful act in furtherance of the conspiracy, and (3) actual damages, as guided by Delaware law. The Plaintiff has not adequately alleged an underlying wrongful act, such as a tort or statutory violation, which is essential for a civil conspiracy claim. Therefore, the Court grants Guidant’s Motion to Dismiss this claim but allows for amendment. Additionally, Guidant seeks dismissal under Fed. R. Civ. P. 12(b)(5) due to improper service of process on individual Guidant Defendants, claiming the positions mentioned do not exist. The Plaintiff counters by naming individuals and citing press releases. Under Rule 12(b)(5), the burden of proof lies with the party contesting service. Courts have discretion to dismiss or quash service if it is found insufficient, but dismissal is inappropriate if proper service remains a possibility. The Plaintiff asserts he served the Defendants at Guidant’s corporate headquarters on November 10, 2010, referencing Docket Item 9 for evidence. A return receipt from the United States Postal Service was submitted but does not confirm service on the unnamed corporate individuals. The Court will dismiss the individual corporate defendants without prejudice, allowing the Plaintiff to potentially identify and serve them properly through an amended complaint. Additionally, the Plaintiff's motion for a criminal referral of the Defendants to the F.B.I. and U.S. Attorney's Office is denied. Guidant argues that the motion violates Federal Rule of Civil Procedure 11 and is aimed at pressuring a settlement. The Court finds that the Plaintiff's allegations lack sufficient evidence to establish probable cause for a criminal investigation. Furthermore, the Plaintiff has failed to serve several named Defendants and must show cause for their continued inclusion in the case. In conclusion, the Court denies the Plaintiff's requests for default and criminal referral, grants Guidant's and Myriad's motions to dismiss, and denies the Plaintiff's motion to strike. Plaintiff is granted leave to amend specific claims, including Title VII race discrimination, ADA, 42 U.S.C. 1981, 42 U.S.C. 5851, 18 U.S.C. 1514A, 42 U.S.C. 1985, and supplemental state law claims for fraud, breach of contract, defamation, civil conspiracy, and intentional infliction of emotional distress. The plaintiff may also correct the naming of the corporate defendant associated with FPL or NextEra Energy. All other claims will be dismissed with prejudice. The plaintiff is permitted to identify and serve individual defendants from the Guidant Group upon filing an amended complaint, which must occur within 21 days. Failure to amend within this timeframe will lead to dismissal with prejudice. The plaintiff must also show cause within 21 days regarding why certain defendants should not be dismissed for failure to identify or serve them within the mandated 120 days. Notably, Myriad Technical Service Corp. and Mirih Dash's motion to dismiss is granted, while their summary judgment motion is denied as premature. Other motions for default and criminal referral are denied, and FPL's motion to dismiss is also granted. The decision is based on a memorandum opinion issued on September 15, 2011. The Plaintiff has identified six defendants associated with Guidant, including the corporation itself and its key executives. Florida Power & Light Company (FPL), the largest electric utility in Florida and a subsidiary of NextEra Energy, Inc., is also mentioned, with its corporate address provided. An Access Authorization Review dated May 14, 2010, included in the Complaint, suggests granting access to records related to the Plaintiff. A subsequent email from May 24, 2010, indicates an agreement was reached regarding the need for a release of medical information, which the Plaintiff declined to provide. The Complaint includes incomplete citations to statutes that do not support the alleged causes of action. FPL has not filed a motion to dismiss or for summary judgment. Delaware law permits lawsuits against dissolved corporations within three years of dissolution, and the Court can exercise jurisdiction over non-residents based on various business activities in the state. Myriad has moved for summary judgment, but the Court has not addressed this motion at this stage. An exhibit in the Plaintiff's opposition to Guidant’s motion includes a timesheet related to an employee involved in a nuclear project, indicating connections to NextEra Energy Resources. Federal courts can dismiss complaints for lack of subject matter jurisdiction if the claims are deemed insubstantial or frivolous. In DeGrazia v. Federal Bureau of Investigation, 316 Fed. Appx. 172 (3d Cir. 2009), the court addresses claims that were dismissed sua sponte under Fed. R. Civ. P. 12(b)(1), meeting the Hagans standard. It notes that the conspiracy claim under Delaware law is considered later. Section 1985(1) is highlighted for prohibiting conspiracies that obstruct individuals from holding office or performing official duties, while Section 1985(2) prohibits conspiracies that prevent witness testimony, harm witnesses, or influence jurors. Guidant asserts that the claims based on U.C.C. Article 2 and 42 U.S.C. § 2000e do not support causes of action for fraudulent inducement. The excerpt references Duane Arnold, a nuclear power facility in Iowa, where the plaintiff sought employment. Additionally, the plaintiff’s motion to strike Guidant’s Motion to Dismiss is denied, and dismissals under 12(b)(5) are confirmed to occur without prejudice, following Umbenhauer, 969 F.2d at 30 n. 6.