United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE.
Court recently reviewed pro se Plaintiff Misty Lynn
Wesley's application to file a Complaint in Lexington
Civil Action No. 5: 18-200-DCR. The Court issued an opinion
on April 26, 2018, allowing Wesley to file a Complaint
alleging certain claims against her former employer under the
Fair Labor Standards Act, but dismissing most of her claims
as frivolous.[5: 18-200, Record No. 7]
Wesley filed a new Complaint in Fayette Circuit Court on May
7, 2018. [Record No. 1-2, pp. 12-24] This Complaint is
largely similar to her original filing in Lexington Civil
Action 5: 18-200-DCR, but includes additional state-law
claims against her former employer, Accessible Home Care. [5:
18-200, Record No. 2] Accessible Home Care removed the action
to this Court based on Wesley's claims arising under
various federal statutes, and filed a motion to dismiss
Wesley's Complaint on June 4, 2018. The defendant argues
that this Court has already ruled that the majority of the
claims are frivolous. The Court agrees and, for the reasons
explained in the Memorandum Opinions and Orders dated April 9
and 26, and June 5, 2018, all of Wesley's
previously-raised non-FLSA claims will be dismissed. See
Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 303 (6th Cir.
2011) (describing requirements of claim preclusion). Further,
the FLSA claims against Accessible Home Care are duplicative
of those raised in Lexington Civil Action No. 5: 18-CV-200
and are being addressed in that action.
has also alleged the following state-law causes of action
against Accessible Home Care: breach of contract; breach of
implied covenant; concealment and misrepresentation; false
advertisement/unfair business practices; and “good
faith limitation breach.” [Record No. 1-1] These
allegations do not contain sufficient factual matter to state
a plausible claim to relief, as they are incoherent and
largely unintelligible. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Fed.R.Civ.P. 8(a)(2).
breach of contract claim appears to be based on the
allegation that the defendant breached some unidentified term
of its policy and procedure manual. [Record No. 1-1 at Page
ID 8] However, she concedes that she was an at-will employee
and that she resigned from her job. Id. at Page ID
8. Additionally, Wesley asks the Court to “dismiss only
the breach of contract allegation due to the legal fact that
the employer's employment manual states that it is not a
binding contract . . . .” Id. at Page ID 10.
Construing Wesley's Complaint liberally, she has failed
to identify a contract breach.
law does not recognize an implied covenant of good faith and
fair dealing in the absence of a contract. Grigsby v. UPS
Ground Freight, Inc., No. 2007-CA-2401, 2009 WL 1636293,
* (Ky. Ct. App. 2009) (citing Farmer's Bank &
Trust Co. of Georgetown, Ky. v. Willmott Hardwoods,
Inc., 171 S.W.3d 4 (Ky. 2005); RAM Engineering &
Constr., Inc. v. Univ. of Louisville, 127 S.W.3d 579,
585 (Ky. 2003)). Wesley was an at-will employee. As a result,
she cannot maintain a cause of action under this theory.
See Id. And regardless of her at-will employment
status, she has not alleged any facts that suggest a lack of
good faith and fair dealing when it comes to her departure
from Accessible Home Care. Instead, Wesley contends that she
resigned after a co-worker asked her to change her work
schedule. [Record No. 1-1, Page ID 8] Accordingly, this claim
will also be dismissed.
remaining claims are difficult to comprehend. She alleges
“concealment and misrepresentation, ” but the
factual basis of the claim is unclear. Either theory requires
the plaintiff to have acted to her detriment based on some
misrepresentation or omission made by the defendant, but she
has not identified any. See Giddings & Lewis, Inc. v.
Indus. Risk Insurers, 348 S.W.3d 729, 747 (Ky. 2011).
Wesley does not cite any specific law in support of her
claims for “false advertisement/unfair business
practices” and “good faith limitation
breach.” The factual basis for these claims is
uncertain, as well. To the extent she complains about the
number of hours she worked or the amount she was paid, these
allegations are subsumed by her FLSA claims.
on the foregoing, it is hereby
matter is CONSOLIDATED with Lexington Civil
Action No. 18-200, pursuant to Rule 42(a)(2) of the Federal
Rules of Civil Procedure. This Order shall be docketed in
Lexington Civil Action No. 5: 18-CV-377 and Lexington Civil
Action No. 5: 18-CV-200. All further filings related to these
actions shall be docketed in Lexington Civil Action No. 5:
Defendant Accessible Home Care's Motion to Dismiss
[Record No. 4] is GRANTED. All claims
asserted herein are DISMISSED, with
prejudice, with the exception of Wesley's FLSA claims
against Defendant Accessible Home Care, which are
DISMISSED, without prejudice.
 As a result of Wesley's history of
vexatious litigation, she was permanently barred from filing
new civil actions in this Court without obtaining prior