United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
defendants are named in this lawsuit asserting employment
discrimination and retaliation claims based on race, gender
and disability. One defendant is an entity known as Friends
of WWOZ, Inc. (“Friends”). The two other
defendants are individual employees of Friends, Beau Royster
and Beth Utterback. Because all parties have consented to
proceed before a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c), Defendants' Rule 12(b)(6) Motion
to Dismiss Claims Against Individual Defendants is pending
before me. Record Doc. No. 34.
the motion seeks an order that “the Complaint . . . and
Amended Complaint . . . be dismissed against . . .
[individual defendants] Utterback and . . . Royster, ”
apparently in their entirety. Id. at p. 1. Among
other things, defendants argue that, as a matter of law, the
Title VII, Americans with Disabilities Act
(“ADA”), Louisiana Employment Discrimination Law
and City of New Orleans Municipal Code claims asserted by
plaintiff can be maintained only against plaintiff's
actual employer, Friends, and not against the individual
defendants. Record Doc. No. 34-1 at pp. 4-5. No. argument
concerning plaintiff's Section 1981 cause of action was
asserted in the original motion papers.
filed a timely opposition memorandum. Record Doc. No. 48.
Defendants filed a reply memorandum. Record Doc. No. 53. In
the reply memorandum, defendants addressed plaintiff's
Section 1981 claim for the first time. They argue that the
same alleged pleading deficiencies identified in their
initial motion papers concerning the other claims also
support dismissal of plaintiff's Section 1981 cause of
action. Record Doc. No. 53 at pp. 6-7. Because defendants
addressed plaintiff's Section 1981 claim for the first
time in their reply, I provided plaintiff with an opportunity
to oppose those arguments in a supplemental memorandum and to
address certain ambiguities in her complaint. Record Doc. No.
59. I also required plaintiff to address whether the City of
New Orleans Municipal Code provided plaintiff herself with
any private right of action under its provisions.
Id. Plaintiff filed the supplemental memorandum.
Record Doc. No. 60.
considered the motion papers, the record as a whole and the
applicable law, IT IS ORDERED that this Rule 12(b)(6) motion
is DISMISSED AS MOOT IN PART, GRANTED IN PART AND DENIED IN
PART as follows.
Defendants' Request for an Order Dismissing the
Original Complaint is Moot
initial matter, I note that plaintiff's amended complaint
supersedes her prior pleadings and constitutes the sole
source of her claims for purposes of this motion. “[A]n
amended complaint supersedes and replaces an original
complaint, unless the amendment specifically refers to or
adopts the earlier pleading.” McDonald v.
McClelland, No. 17-20620, 2019 WL 3057666, at *2 (5th
Cir. July 11, 2019)(citing Eubanks v. Parker
County Commissioners Court, 44 F.3d 1004, at *2
(5th Cir. 1995)); accord King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994); Boelens v.
Redman Homes, Inc., 759 F.2d 504, 508 (5th
Cir. 1985). “Once an amended pleading is interposed,
the original pleading no longer performs any function in the
case.” Bodenheimer v. Williams, C.A. No.
14-740, Record Doc. No. 44 at p. 2 (E.D. La. July 23, 2015)
(Duval, J.) (quoting Thomas v. Miramar Lakes Homeowners
Ass'n, 2014 WL 3897809, at *4-5 (S.D. Tex. Aug. 6,
2014)). Thus, defendant's specific request that the court
dismiss the original complaint is DISMISSED AS MOOT.
Rule 12(b)(6) Legal Standard
plaintiff's supplemental memorandum sometimes refers to
and employs summary judgment standards, it is clear that this
particular motion is a pleading motion under Fed. R.
12(b)(6). Defendants move to dismiss all of
plaintiff's claims under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. Under this
rule, as clarified by the Supreme Court,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” A claim for relief is
plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” A claim for relief is implausible on its face
when “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct.”
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634
F.3d 787, 796 (5th Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007))).
Supreme Court's decisions in Iqbal and
Twombly . . . did not alter the longstanding
requirement that when evaluating a motion to dismiss under
Rule 12(b)(6), a court must accept[ ] all well-pleaded facts
as true and view[ ] those facts in the light most favorable
to the plaintiff.” Id. at 803 n.44 (quotation
omitted); accord Murchison Capital Partners, L.P. v.
Nuance Commc'ns, Inc., 625 Fed.Appx. 617, 618 n.1
(5th Cir. 2015) (citing Wood v. Moss, 134 S.Ct.
2056, 2065 n.5 (2014)). “With respect to any
well-pleaded allegations ‘a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.'” Jabary v. City
of Allen, 547 Fed.Appx. 600, 604 (5th Cir. 2013)
(quoting Iqbal, 556 U.S. at 664). “Factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Maloney Gaming Mgmt., L.L.C. v. St. Tammany
Parish, 456 Fed.Appx. 336, 340 (5th Cir. 2011)
(quotations omitted) (citing Iqbal, 129 S.Ct. at
1959; Elsensohn v. St. Tammany Parish Sheriff's
Ofc., 530 F.3d 368, 371 (5th Cir. 2008); In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 n.10
(5th Cir. 2007)).
operative pleading, the amended complaint, Record Doc. No.
18, plaintiff asserts ten causes of action. The first cause
of action alleges race discrimination and retaliation under
42 U.S.C. § 1981. Id. at pp. 8-9, ¶¶
60-62. The second and third causes of action allege
discrimination and retaliation based on gender, race and color
under Title VII. Id. at pp. 9-10, ¶¶
63-69. The fourth and fifth causes of action allege
discrimination and retaliation under the Americans With
Disabilities Act (“ADA”). Id. at pp.
10-11, ¶¶ 70-78. The sixth and seventh causes of
action allege discrimination and retaliation based on gender,
race, color and disability under the Louisiana Employment
Discrimination Law, La. Rev. Stat. § 23:302 et
seq. and § 23:967. Id. at pp. 11-12,
¶¶ 79-86. The eighth, ninth and tenth causes of
action allege discrimination, retaliation and aiding and
abetting in discrimination and retaliation based on
plaintiff's gender, disability, race and color under the
City of New Orleans Municipal Code, citing § 86.20
Causes of Action Plaintiff Concedes Should Be Dismissed
and/or Voluntarily ...