Bukovinsky v. McKeen Security, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PAUL J. BUKOVINSKY, II, :

Plaintiff, Case No. 2:22-cv-1873

v. Chief Judge Algenon L. Marbley

MCKEEN GROUP, INC., Magistrate Judge Elizabeth P. Deavers

Defendant.

OPINION & ORDER

This matter is before this Court on Defendant McKeen Security, Inc.’s (dba McKeen

Group, Inc.) Motion to Dismiss. (ECF No. 27). For the reasons that follow, this Motion is

DENIED. (ECF No. 27).

I. BACKGROUND

Plaintiff Paul J. Bukovinsky, II, an employee of Defendant McKeen Security, Inc.,

proceeding pro se, brings an action against his employer alleging violations of the: (1) Americans

with Disabilities Act (‘ADA”); (2) the Fair Labor Standards Act (“FLSA”); and (3) the Civil

Rights Act of 1964. (ECF No. 1, § 1). Plaintiff works as a van driver and in a security capacity for

Defendant in a large commercial facility and at a university. (/d., □ 2-56). Plaintiff alleges he was:

(1) written up for violations that were not enforced against his coworkers; (2) accused of not doing

his job when he stopped to speak with coworkers; (3) passed up for promotions by less experienced

staff; (4) made fun of for being a non-denominational Christian priest; (5) yelled at for eating on

the job, despite having diabetes; (6) the subject of sexualized comments; and (7) further abused

when he told supervisors that he intended to file a complaint against Defendant with the Equal

Employment Opportunity Commission (“EEOC”). (/d., §§ 17-55). He also alleges that he was

underpaid for the hours worked and had inapplicable taxes extracted from his paycheck. (/d.).

Plaintiff filed this action on December 21, 2021 in the Northern District of Ohio. (ECF No.

1). The matter was transferred to this Court on April 4, 2022 (ECF No. 11), and the Magistrate

Judge issued a Report and Recommendation (“R&R”) recommending the matter be dismissed with

prejudice for failure to prosecute (ECF No. 19). After Plaintiff filed objections on October 20,

2022, the R&R was withdrawn. (ECF No. 20; 21). After giving Plaintiff several opportunities to

properly serve Defendant, McKeen Security, Inc. was served on January 23, 2023. (ECF No. 26).

Defendant McKeen Security, Inc. filed this Motion to Dismiss on February 13, 2023 raising

three arguments: (1) McKeen Group, Inc. is McKeen Security, Inc.’s trade name, and McKeen

Group, Inc.—a nonexistent legal entity—cannot be held liable for employment discrimination; (2)

Plaintiff repeatedly failed to prosecute this case by not completing service of process; and (3)

Plaintiff failed to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 27-

1 at 2-3). Further, Defendant alleges that McKeen Group, Inc. is not registered to do business in

Ohio, nor does it employ employees. (/d.). Plaintiffs response, titled a Motion to Quash, seeks to

quash Defendant’s Motion to Dismiss and argued that “McKeen Group, Inc.” appears in multiple

places on the company’s website. (ECF No. 32, ] 3-5). Defendant’s Reply, titled as a Response

in Opposition to Plaintiff's Motion to Quash, reiterates its previous arguments and counters that it

is properly registered to do business in Ohio under its official name.

This Court interprets Plaintiffs “Motion to Quash” as a Response to Defendant’s Motion

to Dismiss, and Defendant’s Response in Opposition to Plaintiff's Motion to Quash as a Reply to

Defendant’s Motion to Dismiss. Because the Motion to Dismiss has been fully briefed, this matter

is ripe for review.

II. LAW & ANALYSIS

First, Defendant cannot escape liability just because Plaintiff incorrectly filed this action

under Defendant’s trade name, not its legally registered business name. Plaintiff's naming of

“McKeen Group, Inc.” is clearly a misnomer, as it is a name by which Defendant refers to itself

on its website and as a trade name. (ECF Nos. 27-1 at 2; 32 at 5); see also Hughen v. BHG Nashville

#1, LLC., No. 3:20-cv-0236, 2020 WL 2557961, at * 7-8 (M.D. Tenn. Feb. 6, 2020) (finding that

plaintiff's misnaming of defendant was clear misnomer where body of complaint properly

identified the defendant and defendant was on notice from the time the claim was filed). Of utmost

importance is that the putative defendant has actual notice of the lawsuit. Nationwide Mut. Ins. Co.

v. Kaufman, 896 F.Supp. 104, 109 (E.D.N.Y 1995). Not only does Plaintiff allege that he informed

his supervisors that he intended to file an EEOC complaint, (see ECF No. 32, § 26), but Defendant

appeared in this action—demonstrating they are on notice of the lawsuit and not challenging

whether Plaintiff is in fact employed with the company.

It is well established that, “a pro se litigant’s pleadings are to be construed liberally and

have been held to less stringent standards than formal pleadings drafted by attorneys.” Brown v.

City of Columbus, No. 2:18-cv-521, 2018 WL 4654693, at *1 (S.D. Ohio Sep. 27, 2018) (citing

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Several courts have concluded that pro se

complaints sufficiently pled claims against defendants that are not even named in the caption,

“when there are adequate factual allegations to establish the plaintiff intended them as defendants.”

Rogers v. Miller, No. 16 Civ. 3610, 2017 WL 6542459, at *9 (E.D.N. Y Dec. 21, 2017) (collecting

cases); see also Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243-44 (10th Cir. 2007) (“[I]n a pro se

case when the plaintiff names the wrong defendant in the caption . . . courts may look to the body

of the complaint to determine who the intended and proper defendants are.”); Lamb v. Davis, No.

CV208-160, 2009 WL 982037, at *2 (S.D. Ga. April 10, 2009) (finding that a mistaken caption

did not provide grounds to dismiss a case, and instead ordering the court clerk to correct the

caption).

Finally, Defendant fails to demonstrate how it has been or would be prejudiced by this

technical mistake. Hilgraeve Corp. v. Symantec Corp., 212 F.R.D. 345, 348 (E.D. Mich. 2003)

(finding defendant failed to demonstrate how it would be prejudiced by accidental substitution of

plaintiff's trade name in the case caption for its official business name). Therefore, Plaintiff

presents sufficient evidence that Defendant holds itself out as the McKeen Group.

Defendant’s second argument fails as this Court is not in the business of punishing Plaintiff

for past wrongs that have been rectified. The Magistrate Judge saw it appropriate to grant Plaintiff

several opportunities to serve properly Defendant, due to Plaintiffs pro se status. Defendant was

properly served on January 23, 2023. (ECF No. 26). Because Defendant fails to challenge improper

service under Federal Rule of Civil Procedure 12(b)(5), this matter is no longer at issue.

As to Defendant’s final argument, this Court may dismiss a cause of action under Federal

Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.”

Defendant, however, states in a conclusory fashion that Plaintiff fails to state a claim and provides

no supporting legal argument or analysis. It is defendant who “has the burden of showing that the

plaintiff has failed to state a claim for relief.” Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.

2015). This Court is “in the business of resolving the legal arguments presented to it, not in creating

a party’s inferred argument for him and then passing judgment on it.” Lyon v. Yellow

Transportation, Inc., No. 2:08-cv-0464, 2009 WL 1604807, at * 15 (S.D. Ohio Jun. 8, 2009); see

also Nicholson v. Jayco, Inc., No. 5:15-cv-2010, 2016 WL 5463215, at *21 (N.D. Ohio Sept. 29,

2016) (“It is not the Court’s obligation to conduct the required research, construct arguments, and

frame a legal analysis on any party’s behalf.”); Dibrell v. City of Knoxville, Tenn., 984 F.3d 1156,

1163 (6th Cir. 2021) (explaining “judges are not like pigs, hunting for truffles that might be buried

in the record”). Defendant fails to meet its burden by presenting no argument on the merits of

Plaintiff's claim.

II. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 27) is DENIED. The

Clerk is DIRECTED to correct Defendant’s name in the case caption to “McKeen Security, Inc.”.

IT IS SO ORDERED.

Le. MARBLEY Le

CHIEF UNITED STATES DISTRICT JUDGE

DATED: August _/O_, 2023