United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
Heidi Ann Gills (“Gills”) filed this action for
personal injuries caused her by an agent of Defendant Cellco
Partnership d/b/a Verizon Wireless (“Verizon”).
Defendant removed the case from a state court, premising
jurisdiction on diversity.
contends an unnamed sales representative of Verizon, who had
texted her information about cell phones and plans,
apparently accidentally sent her a vulgar text, and then
stopped communicating with her when she tried to complete the
sale. As a result, Gills suffered depression and anxiety.
Gills contends she eventually contacted Verizon's
executive offices about the incident and sent them
screenshots of the conversation, as they requested. Verizon
told Gills they never received her letter and the
screenshots, although delivery to Verizon was verified by the
initiated this action, seeking damages for negligent
infliction of emotional distress and intentional infliction
of emotional distress under Louisiana law pursuant to La.
C.C. art. 2315 (Doc. 1).
answered the complaint (Doc. 23; Doc. 38-1, p. 11/43)), then
filed a Motion to Dismiss for failure to state a claim (Doc.
Gills filed a response to Defendant's motion (Doc 18), to
which Defendant replied (Doc. 19).
Law and Analysis
Standards governing a Motion for Judgment on the
may grant a motion to dismiss for “failure to state a
claim upon which relief can be granted” under
Fed.R.Civ.P. 12(b)(6). “[A] complaint will survive
dismissal for failure to state a claim if it contains
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
Legate v. Livingston, 822 F.3d 207, 210 (5th Cir.
2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal citation and quotation omitted). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The court
must view all well-pleaded facts in the light most favorable
to the plaintiff. Yumilicious Franchise, L.L.C. v.
Barrie, 819 F.3d 170, 174 (5th Cir. 2016).
a Rule 12(b) motion must be filed before responsive
pleadings, Defendant's motion was untimely. A motion to
dismiss for failure to state a claim, filed after the answer,
is treated as a motion for judgment on the pleadings, based
on a failure to state a claim on which relief may be granted,
under Fed.R.Civ.P. 12(c). Rule 12(c) motions may be filed
after the pleadings are closed. Jones v. Greninger,
188 F.3d 322, 324 (5th Cir. 1999). The standard of review
under Rule 12(b)(6) applies to motions for judgment on the
pleadings under Rule 12(c). See Delhomme v.
Caremark Rx Inc., 232 F.R.D. 573, 576, n. 2 (N.D. Tex.
2005) (citing Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir.
2002)); see also Young v .City of Houston, 599
Fed.Appx. 553, 554 (5th Cir. 2015) Quality Infusion Care
Inc., v. Humana Health Plan of Texas Inc., 290 Fed.Appx.
671, 684 at n. 3 (5th Cir. 2008) (“Although the
distinction should be noted, calling it dismissal or judgment
on the pleadings is immaterial to the analysis
Plaintiff failed to state a claim for negligent
infliction of emotional distress.
argues Gills has not stated a claim for negligent infliction
of emotional distress because the conduct alleged is not
alleges she conversed with a Verizon sales agent about cell
phones via text for two days. At some point, the sales agent
sent Gills a “sound text” that said “bitch,
” then sent another text stating “disregard
that” (Doc. 1-4). The sales person then ...