United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Dismiss [doc. 18] filed by defendant
Sears, Roebuck and Co. (“Sears”) pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff Wanda Stewart, who is proceeding pro
se in this matter, opposes the motion through an
untimely response. Doc. 24.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with 28 U.S.C.
§ 636 and the standing orders of this court. For reasons
stated below, IT IS RECOMMENDED that the
Motion to Dismiss [doc. 18] be GRANTED and
that the action be DISMISSED WITH PREJUDICE
pursuant to Rule 12(b)(6).
previously filed a civil rights suit in this court against
Sears on December 13, 2016. Stewart v. Sears
[“Stewart I”], No. 2:16-cv-1710 (W.D.
La. Aug. 9, 2017). In the amended complaint of Stewart
I, she alleged that Sears had misappropriated her wages
and then subjected her to a hostile work environment,
harassed her, and intimidated her for reporting that
misappropriation. Id. at doc. 6, pp. 4-5. On August
7, 2017, Stewart executed a confidential settlement agreement
in which, in exchange for valuable consideration, she agreed
to dismiss her claims against Sears, with prejudice, and to
irrevocably and unconditionally release all claims against
Sears from any conduct occurring up to the date of that
agreement, “including without limitation any claims
incidental to or arising out of [Stewart's] employment
with SEARS, or the cessation thereof.” Doc. 21, pp. 3-4.
Stewart also agreed that she would resign from her employment
at Sears and would not be eligible for rehire thereafter.
Id. at 4. On August 9, 2017, Stewart and Sears filed
a joint stipulation of dismissal with prejudice in
Stewart I, and the case was administratively
terminated. No. 2:16-cv-1710 at doc. 14.
September 6, 2017, Stewart filed this civil rights complaint
against Sears. Doc. 1. Here she again alleges harassment and
intimidation following her reports of misappropriated wages
and adds that she has been discriminated against and harassed
because of her race and gender from during the period of her
employment until June 2017. Id. at 4-5. She seeks
damages in the amount of $85, 000. Id. at 6.
now brings this motion to dismiss, arguing that Stewart's
civil rights claims are barred by the settlement agreement
and the doctrine of res judicata, and that any
claims brought under § 1983 are without merit because
Sears is not a state actor. Doc. 18. Stewart opposes the
motion and alleges that Sears has breached the settlement
agreement by giving her the wrong amount in her settlement
check. Doc. 24.
Motion to Dismiss Standards
motion under Rule 12(b)(1) attacks the court's
jurisdiction to hear and decide the case. A motion under Rule
12(b)(6) alleges that the plaintiff has failed to state a
claim upon which relief may be granted. A court must address
a jurisdictional challenge under Rule 12(b)(1) before
addressing a merits challenge under Rule 12(b)(6).
Ramming v. United States, 281 F.3d 158, 161 (5th
burden on a Rule 12(b)(1) motion lies with the party seeking
to invoke the court's jurisdiction. Rivera-Sanchez v.
Reno, 198 F.3d 545, 546 (5th Cir. 1999). In reviewing
such a motion, the court must first determine whether it
presents a facial or factual attack on jurisdiction.
Braatz. LLC v. Red Mango FC, LLC, 642 Fed. App'x
406, 409 (5th Cir. 2016). Because this motion is supported by
evidence outside of the pleadings, it is a factual attack.
See Paterson v. Weinberger, 644 F.2d 521, 523 (5th
Cir. 1981). “[W]hen a defendant makes a factual
attack[, ] no presumptive truthfulness attaches to
plaintiff's allegations.” Eagle TX I SPE, LLC
v. Sharif & Munir Enters., Inc., 602 Fed. App'x
576, 578 (5th Cir. 2015) (internal quotations omitted).
Instead, the plaintiff must prove the existence of subject
matter jurisdiction by a ...