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Gills v. Cellco Partnership

United States District Court, W.D. Louisiana, Alexandria Division

March 20, 2018

HEIDI ANN GILLS
v.
CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS

          DRELL JUDGE.

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         I. Background

         Plaintiff 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.

         Gills 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 carrier.

         Gills 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).

         Defendant answered the complaint (Doc. 23; Doc. 38-1, p. 11/43)), then filed a Motion to Dismiss for failure to state a claim (Doc. 12).[1] Gills filed a response to Defendant's motion (Doc 18), to which Defendant replied (Doc. 19).

         II. Law and Analysis

         A. Standards governing a Motion for Judgment on the Pleadings.

         A court 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).

         Because 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 herein.”).

         B. Plaintiff failed to state a claim for negligent infliction of emotional distress.

         Defendant argues Gills has not stated a claim for negligent infliction of emotional distress because the conduct alleged is not sufficiently outrageous.

         Gills 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 ...


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