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Stewart v. Sears Roebuck & Co.

United States District Court, W.D. Louisiana, Lake Charles Division

February 23, 2018

WANDA STEWART
v.
SEARS, ROEBUCK & CO.

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before 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.[1] Doc. 24.

         This 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).

         I.

         Background

         Stewart 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.[2] 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.”[3] 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.

         On 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.

         Sears 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.

         II.

         Law & Analysis

         A. Motion to Dismiss Standards

         A 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 Cir. 2001).

         The 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 ...


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