The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GRANT MOLLA,
on behalf of the Gerdau Ameristeel
US 401(k) Retirement Plan, himself,
and all others similarly situated,
Plaintiff,
v. Case No. 8:22-cv-2094-VMC-SPF
GERDAU AMERISTEEL, US, INC.
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Gerdau Ameristeel US, Inc.’s Motion to Strike or,
Alternatively, Dismiss Plaintiff’s Amended Complaint (Doc. #
61), filed on August 23, 2024. Plaintiff Grant Molla responded
on September 20, 2024. (Doc. # 69). With leave of Court,
Gerdau filed a reply on October 4, 2024. (Doc. # 72). For the
reasons set forth below, the Motion is granted.
I. Background
Plaintiff is a participant in the Gerdau Ameristeel US
401(k) Retirement Plan. (Doc. # 59 at ¶ 12). On September 9,
2022, Plaintiff filed suit on behalf of the Plan, himself,
and all others similarly situated against Gerdau Ameristeel
US, Inc. and the Gerdau Benefits Plans Administrative
Committee. (Doc. # 1). Shortly after, the parties jointly
filed a motion to stay the proceedings pending exhaustion of
administrative remedies. (Doc. # 12). While “Plaintiff
believe[d] that such exhaustion is likely excusable and/or
futile, . . . [he] agreed to work cooperatively with
Defendants to exhaust his administrative remedies.” (Id. at
¶¶ 3-4). Thus, on October 1, 2022, the Court stayed the case
pending exhaustion of administrative remedies. (Doc. # 13).
On November 13, 2023, the parties jointly moved to lift
the stay. (Doc. # 23). The parties informed the Court that
the claim review process was complete and that “the retirement
plan committee considered and timely denied Plaintiff’s
claim,” as well as his appeal. (Id. at ¶ 7). The Court granted
the motion and reopened the case. (Doc. # 24).
On July 2, 2024, the Court granted Defendants’ first
motion to dismiss. (Doc. # 49). The Court dismissed the
complaint without prejudice, holding that Plaintiff “must
file an amended complaint that pleads exhaustion of
administrative remedies” to proceed. (Id. at 10-11).
Plaintiff filed an amended class action complaint on August
9, 2024, which names Gerdau as the sole defendant. (Doc. #
59). The Committee is not named as a defendant. (Id.). The
amended complaint alleges that Gerdau breached its fiduciary
duties because it “failed to monitor or control the grossly
excessive compensation paid” to the Plan’s recordkeeper and
“failed to offer prudent investment share classes on the
Plan’s investment menu.” (Id. at ¶ 129).
Gerdau now moves to strike, or, alternatively, dismiss
plaintiff’s amended complaint. (Doc. # 61). The Motion is
fully briefed (Doc. # 69; Doc. # 72), and is now ripe for
review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to “well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed.” La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
The Court grants Gerdau’s request to dismiss the amended
complaint. (Doc. # 61 at 9-15). Gerdau submits that “[b]ecause
the [a]mended [c]omplaint’s bare, conclusory allegation about
exhaustion provides no facts regarding the administrative
process or its outcome, it fails to adequately allege
administrative exhaustion and should, again, be dismissed.”
(Id. at 9-10). Moreover, Gerdau argues that “Plaintiff’s
failure to exhaust administrative remedies with regard to his
new claims requires dismissal.” (Id. at 15).
In response, Plaintiff first argues that he properly
pled exhaustion of remedies, and that the exhaustion history
discussed in prior motions and attachments is incorporated by
reference into the amended complaint. (Doc. # 69 at 4-5).
Plaintiff additionally argues that his share class exhaustion
efforts were futile. (Id. at 13-14).
“To properly plead exhaustion, plaintiffs must specify
the action they took to exhaust their administrative remedies
and the outcome of the action.” Sanctuary Surgical Ctr., Inc.
v. United Healthcare, Inc., No. 10-81589-CIV, 2011 WL
2134534, at *8 (S.D. Fla. May 27, 2011); see also Cousins v.
United Healthcare, Inc., No. 19-CV-25061, 2020 WL 1666628, at
*3 (S.D. Fla. Apr. 3, 2020) (finding that an amended complaint
did not sufficiently plead exhaustion of remedies by stating
“[a]ll conditions precedent to the bringing of this action
have been complied with, satisfied or otherwise waived. This
includes all appeals and/or administrative remedies known to
be available”). Additionally, a “bare assertion of futility
is insufficient. To properly plead futility, plaintiffs must
allege why exhausting their administrative remedies would be
futile and provide sufficient detail to make their claim of
futility plausible.” Sanctuary Surgical Ctr., Inc., 2011 WL
2134534, at *9.
“[A] complaint may not be amended by briefs in opposition
to a motion to dismiss.” Donovan v. Rivadeneira, 557 F. Supp.
3d 1236, 1244 (S.D. Fla. 2021) (citing Huls v. Llabona, 437
F. App’x 830, 832 n.5 (11th Cir. 2011)); see also Brown v.
J.P. Turner & Co., No. 1:09-CV-2649, 2011 WL 1882522, at *5
(N.D. Ga. May 17, 2011) (noting that making a new argument
for the first time in response to a motion to dismiss to
bolster a claim “is plainly inappropriate”).
The Court’s order granting Defendants’ first motion to
dismiss explained that “[P]laintiff must still plead
exhaustion of administrative remedies even when the parties
do not dispute this fact.” (Doc. # 49 at 10-11). At the motion
to dismiss stage, the Court need only determine whether the
complaint, or in this case the amended complaint, plausibly
alleges exhaustion of remedies or that exhaustion would be
futile. However, Plaintiff’s conclusory statement that he
“has exhausted his administrative remedies” does not allow
the Court to make such a determination. (Doc. # 59 at ¶ 11).
Again, in reviewing a motion to dismiss, the Court’s
review is limited “to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and
matters judicially noticed.” La Grasta, 358 F.3d at 845. “A
document or thing is incorporated by reference into a
complaint where (1) it is central to the plaintiff’s claim,
(2) its contents were alleged in the complaint, and (3) no
party questions those contents.” Quinette v. Reed, 805 F.
App’x 696, 700 (11th Cir. 2020). While Plaintiff asserts (1)
that the exhaustion history was incorporated by reference
into the amended complaint, and (2) that exhaustion would be
futile, neither of those theories were referenced to or
alleged in the amended complaint. Accordingly, the Court does
not consider those arguments part of the amended complaint.
Therefore, the amended complaint is dismissed for failure to
sufficiently plead exhaustion of remedies.
Because the amended complaint is dismissed, the Court
denies Gerdau’s request to strike the amended complaint as
moot.
To proceed with this action, Plaintiff must file an
amended complaint that sufficiently pleads exhaustion of
administrative remedies and/or that exhaustion would be
futile. The Court cautions that this leave to amend is limited
to pleading exhaustion of remedies and/or futility. However,
the Court permits Plaintiff to reassert in the second amended
complaint the new facts and supposed new legal theories that
were alleged in the dismissed amended complaint. Plaintiff
may not make additional substantive changes. If Plaintiff
intends to add further factual or legal theories not already
pled in the dismissed amended complaint, Plaintiff must file
a motion under Rule 15(a) and in accordance with the January
31, 2025, deadline for motions to amend pleadings set in the
case management and scheduling order. (Doc. # 74).
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Gerdau Ameristeel US, Inc.’s Motion to Strike,
or Alternatively, to Dismiss Plaintiff’s Amended
Complaint (Doc. # 61) is GRANTED.
(2) Plaintiff Grant Molla’s amended class action complaint
is DISMISSED without prejudice. (Doc. # 59).
(3) To proceed with this action, Plaintiff Grant Molla must
file an amended complaint properly pleading exhaustion
of remedies within 14 days from the date of this Order.
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of January, 2025.
bani? 9r. Hunenby Cone.
VIRGINIA M. HERNANDEZ*COVINGTON
UNITED STATES DISTRICT JUDGE