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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:12-cv-81401-DMM.
For Portia Surtain, Plaintiff - Appellant: Marjorie Graham, Marjorie Gadarian Graham, PA, Palm Beach Gardens, FL; Arnold S. Gaines, Harper Gaines PLLC, Jacksonville, FL.
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
Portia Surtain appeals the District Court's order denying her motion for a default judgment and sua sponte dismissing with prejudice her second amended complaint. Surtain's complaint contains essentially three claims. First, she alleges that her former employer, Hamlin Terrace Foundation, discriminated against her on the basis of race (she is African-American) by handling her request for medical leave differently than it did the requests of white employees, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq. ; the Civil Rights Act of 1991 (" Section 1981" ), 42 U.S.C. § 1981; and the Florida Civil Rights Act (" FCRA" ), Fla. Stat. § 760.10. Second, she alleges that Hamlin discriminated against her on the basis of disability by terminating her employment when it discovered she had a medical disability, in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq. Finally, she alleges that Hamlin interfered with, or retaliated against her for exercising, her right to take medical leave by providing inadequate paperwork and then firing her, in violation of the Family and Medical Leave Act of 1993 (" FMLA" ), 29 U.S.C. § 2601 et seq. We conclude that the District Court evaluated Surtain's race- and disability-discrimination claims under the wrong standard, but that even under the right standard, her complaint plainly fails to make out a claim of disability discrimination. We also conclude that
the court improperly dismissed the interference portion of her FMLA claim without giving her notice and an opportunity to respond, though it properly dismissed the retaliation portion of this claim. Accordingly, we affirm in part and vacate and remand in part.
Surtain filed her initial complaint on December 21, 2012. After Hamlin failed to respond in a timely manner, Surtain obtained an entry of default against Hamlin from the Clerk of Court. She then moved the District Court to enter a default judgment against Hamlin. Hamlin failed to respond to this motion or to the District Court's order to show cause why Surtain's motion should not be granted. The court dismissed Surtain's race- and disability-discrimination claims with leave to amend, finding that she had failed to allege facts sufficient to withstand a dismissal under Federal Rule of Civil Procedure 12(b)(6), and thus to support the entry of judgment. The District Court found that the complaint did state a valid FMLA claim, however, and concluded that Surtain was entitled to judgment on this claim.
Surtain filed an amended complaint, to which Hamlin again failed to respond. Surtain sought and received another entry of default from the Clerk, and moved a second time for default judgment. The District Court then called a status conference, at which the court inquired as to both the manner of service of process and the nature of Surtain's claims in general. On the latter point, the court expressed doubts as to the viability of (1) Surtain's disability-discrimination claim, given that she had neither informed Hamlin of the nature of her disability or afforded it an opportunity to provide a reasonable accommodation, and (2) her race-discrimination claims, noting that she was required to point to substantially similar comparators who had received different treatment.
At the conclusion of the conference, the District Court concluded that neither the initial complaint nor the amended complaint were properly served, denied Surtain's second motion for entry of default judgment, and ordered her to re-serve Hamlin. Surtain promptly filed a second amended complaint, which she properly served on Hamlin's registered agent, and in which she provided a modicum of additional information about her disability. After Hamlin again failed to respond, and Surtain again obtained an entry of default from the Clerk, Surtain filed a third motion for entry of default judgment as to liability.
After reviewing the allegations of the complaint, the District Court denied the motion. Regarding the race-discrimination claims, the District Court held that, even taking the well-pleaded ...