United States District Court, D. Utah, Central Division
GUY M. DOMAI, Plaintiff,
KRIS HAUSER, Defendants.
REPORT & RECOMMENDATION
B. Pead, U.S. Magistrate Judge
Guy M. Domai (Plaintiff or Mr. Domai) brings this action
against Kris Hauser (Defendant or Hauser) in his capacity as
the Senior Vice President at American Express. Mr. Domai is
proceeding pro se and in forma
pauperis. When a plaintiff proceeds in forma
pauperis the court “shall dismiss the case at any
time if the court determines that . . . the action . . .
fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(i-ii). However,
“[d]ismissal of a pro se complaint for failure to state
a claim is only proper where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it would be
futile to give him an opportunity to amend.”
Perkins v. Kan. Dep't. of Corr., 165 F.3d 803,
806 (10th Cir. 1999).
reviewing the sufficiency of a complaint, the court must
presume that “all plaintiff's factual allegations
are true and construe[ ] them in the light most favorable to
the plaintiff.” Hall v. Bellmon 935 F.2d 1106,
1009 (10th Cir. 1991). Because Plaintiff is
proceeding pro se, the Court must construe his
pleadings liberally and hold them to a less stringent
standard than formal pleadings drafted by attorneys.
Id. at 1110. That said, a “broad reading of
the plaintiff's complaint does not relieve [him] of the
burden of alleging sufficient facts on which a recognized
legal claim could be based.” Id.
complaint, Mr. Domai asserts he was employed by American
Express from September 2008 to May 2011. On May 20, 2011
Plaintiff claims he was terminated while in the process of
filing a Family Medical Leave Act (FMLA) claim. (ECF No. 3.)
Mr. Domai brings a claim against Hauser for unlawful
termination under FMLA and seeks $1 million dollars in lost
wages and benefits, attorney fees totaling $350, 000 and
liquidated damages totaling $100, 000.00. (Id.)
for violations of the FMLA “may be brought . . . no
later than 2 years after the date of the last event
constituting the alleged violation for which the action is
brought.” 29 U.S.C. §2617(c)(2). In the case of a
“willful violation, ” the statute of limitations
period is three years. Id. at §2617(c)(2).
Mr. Domai alleges that he stopped working for American
Express on May 20, 2011. Thus, May 20, 2011, is the last date
on which the statute of limitations for Plaintiff's claim
could begin to run. Mr. Domai, however, did not file his
complaint until May 22, 2017, well beyond the two, or even
three, year statute of limitations period. Accordingly, Mr.
Domai's complaint is time-barred and no amendment can
cure this defect.
as set forth above, the Court RECOMMENDS that Mr. Domai's
action be dismissed with prejudice.
of the foregoing Report and Recommendation are being sent to
all parties who are hereby notified of their right to object.
Within fourteen (14) days of being served with a copy, any
party may serve and file written objections. See 28
U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b). Failure to object
may constitute a waiver of objections upon subsequent review.
 This case is currently before the
undersigned pursuant to a 28 U.S.C. §636(b)(1)(B)
referral from District Court Judge Dee ...