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Kotsias v. Lavie Care Centers, LLC

United States District Court, W.D. North Carolina, Asheville Division

April 28, 2018

RITA KOTSIAS, Plaintiff,



         THIS MATTER is before the Court on the Defendants' Renewed Motion to Dismiss [Doc. 36].


         On October 22, 2015, the Plaintiff Rita Kotsias, proceeding pro se, filed her first lawsuit against CMC II, LLC; La Vie Care Centers, d/b/a Consulate Health Care; Consulate Management Company; Florida Health Care Properties, LLC; and ESIS. [Civil Case No. 1:15-cv-00242-MR-DLH (“Kotsias I”), Doc. 1]. In Kotsias I, the Plaintiff asserted claims of discrimination pursuant to Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act of 1990. Specifically, the Plaintiff alleged that the named Defendants: (1) failed to accommodate her in violation of the ADA when she returned to work following medical leave; (2) wrongfully terminated her employment in violation of the ADA; and (3) subjected her to “general harassment.” [Id.].

         In August 2016, four of the named Defendants filed a motion for summary judgment. [Kotsias I, Doc. 38]. The other remaining Defendant, ESIS, filed a motion to dismiss. [Kotsias I, Doc. 31]. On September 29, 2016, the Magistrate Judge issued a Memorandum and Recommendation, recommending that the motion to dismiss be granted on the grounds that ESIS, as a workers' compensation carrier, was not the Plaintiff's “employer” within the meaning of Title VII or the ADA. [Kotsias I, Doc. 50]. On October 13, 2016, the Plaintiff objected to the Magistrate Judge's proposed conclusions of law. [Kotsias I, Doc. 59]. In her Objections, the Plaintiff requested leave to amend to assert additional factual allegations against ESIS.[1] [Id.].

         While the Plaintiff's Objections and the motions for summary judgment were pending in Kotsias I, the Plaintiff filed the present action (“Kotsias II”). In Kotsias II, the Plaintiff names the same Defendants as those identified in Kotsias I, plus several new entities -- Salus Rehabilitation, LLC; Centennial Healthcare Holding Company, LLC; Emerald Ridge Healthcare, LLC, d/b/a Emerald Ridge Rehab and Care Center; and The Oaks at Sweeten Creek Healthcare, LLC, d/b/a The Oaks at Sweeten Creek. The Plaintiff alleges that all of these Defendants, the original Defendants and the newly added ones, are part of an “integrated enterprise” that constitute her employer. The Defendants that are alleged to be part of this integrated enterprise are collectively referred to herein as “the Consulate Defendants.”

         In Kotsias II, the Plaintiff alleges that the Consulate Defendants conspired with their workers' compensation insurance carrier ESIS, their legal counsel Kelly Christie (formerly Ongie), and third-party claims administrator Work Comp Strategic Solutions, to take “material adverse employment actions” against her including “failure to accommodate, wrongful termination, harassment, interference and retaliation.” [Kotsias II, Doc. 1 at 2 ¶ 2]. The Plaintiff specifically asserts three causes of action in Kotsias II: (1) civil conspiracy to violate the ADA; (2) discrimination in violation of the ADA; and (3) retaliation in violation of the ADA. The Plaintiff, however, relies on the same operative factual allegations asserted in Kotsias I to support her civil conspiracy and disability discrimination claims. Specifically, she recounts her 2011 work-place injury; the leave she took and the medical treatment she received following the injury; her return to work; the Consulate Defendants' and ESIS's alleged refusal to accommodate her; the general treatment she received from employees of ESIS and the Consulate Defendants; and the ultimate termination of her employment. [Id.]. The only new material factual allegations in Kotsias II relate to her retaliation claim based on the Consulate Defendants' alleged failure to rehire her for two positions after her termination but before she filed Kotsias I. Specifically, the Plaintiff alleges that the Consulate Defendants refused to hire her for a clerk/receptionist position at Emerald Ridge on September 9, 10, or 24, 2014; and that they refused to hire her for a clerk/receptionist position at The Oaks on September 8 or 9, 2015. [Kotsias II, Doc. 2 at 5 ¶¶ 4-5].

         In December 2016, the Court overruled the Plaintiff's Objections in Kotsias I and accepted the Magistrate Judge's Recommendation that ESIS should be dismissed. [Kotsias I, Doc. 70]. In addressing the Plaintiff's Objections, the Court also denied the Plaintiff's request to amend her allegations with respect to ESIS as untimely, noting that the Plaintiff had waited until after the Magistrate Judge had issued his Memorandum and Recommendation before making her request. The Court also noted that her proposed amendment would be futile. [Kotsias I, Doc. 70 at 2-3].

         In January 2017, all of the Defendants named in Kotsias II filed Motions to Dismiss the Plaintiff's Complaint on varying grounds. [See Kotsias II, Docs. 15, 17, 22].

         In Kotsias I the discovery period had long since closed, the Defendants had moved for summary judgment, and the motions deadline had passed. The Court denied the Defendants' motions for summary judgment, and on May 8, 2017, the case was called for trial. The Plaintiff, however, did not appear.[2] The Defendants then moved to dismiss the action due to the Plaintiff's failure to prosecute. [Kotsias I, Doc. 107]. The Court granted the Defendants' Motion in open court but ordered the parties to submit supplemental briefing as to whether such dismissal should be with or without prejudice. [Kotsias I, Minute Order dated May 8, 2017]. On August 8, 2017, the Court entered an Order in Kotsias I dismissing the Plaintiff's claims with prejudice in light of her failure to prosecute. [Kotsias I, Doc. 116]. No. appeal has been taken, and Kotsias I therefore is concluded.

         Thereafter, on August 28, 2017, the Magistrate Judge issued a Memorandum and Recommendation in Kotsias II, recommending that: (1) all of the Plaintiff's civil conspiracy claims should be dismissed and (2) all of the Defendants should be dismissed with the exception of the Consulate Defendants. As for the Consulate Defendants' Motion, the Magistrate Judge denied such motion with leave to renew and instructed the Consulate Defendants to address in their renewed motion the issue of whether the Plaintiff's claims were barred by res judicata in light of the dismissal of Kotsias I. [Kotsias II, Doc. 28]. The Court subsequently accepted the Magistrate Judge's Memorandum and Recommendation, over the Plaintiff's Objections, on September 29, 2017. [Kotsias II, Doc. 34].

         In response to the Magistrate Judge's Memorandum, the Consulate Defendants submitted a Supplemental Memorandum of Law in Support of their Motion to Dismiss, to which the Plaintiff filed a Response and the Consulate Defendants submitted a Reply. [See Kotsias II at Docs. 29, 31, 35]. The Consulate Defendants formally renewed their Motion to Dismiss on March 20, 2018, arguing inter alia that the Plaintiff is barred from litigating any the claims asserted against the Consulate Defendants in Kotsias II under the doctrine of res judicata. [Doc. 36]. The Plaintiff has not filed a Response to the renewed Motion to Dismiss.


         The central issue for resolving a Rule 12(b)(6) motion is whether the claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering the Defendants' motion, the Court accepts the allegations in the Complaint as true and construes them in the light most favorable to the Plaintiff. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92. Although the Court accepts well-pled facts as true, it is not required to accept “legal conclusions, elements of a cause ...

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