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Ricks v. Friends of WWOZ, Inc.

United States District Court, E.D. Louisiana

August 15, 2019

TABITHA PEARL RICKS
v.
FRIENDS OF WWOZ, INC. ET AL.

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

         Three 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.

         Specifically, 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.

         Plaintiff 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.

         Having 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.

         I. Defendants' Request for an Order Dismissing the Original Complaint is Moot

         As an 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.

         II. Rule 12(b)(6) Legal Standard

         Although 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).[1] 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))).

         “The 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)).

         In the 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[2] 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 et. seq.

         III. Causes of Action Plaintiff Concedes Should Be Dismissed and/or Voluntarily ...


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