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Otero v. Advocacy Center

United States District Court, E.D. Louisiana

September 26, 2019

CONCEPCION OTERO
v.
ADVOCACY CENTER, ET AL.

         SECTION “D” (3)

          ORDER AND REASONS

          Wendy B. Vitter United States District Judge

         On April 30, 2019, defendants Advocacy Center of Louisiana (“Advocacy Center”), Lois V. Simpson (“Simpson”) and Ronald K. Lospennato (“Lospennato”), collectively defendants, filed a motion pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure seeking dismissal of all of plaintiff’s claims against Simpson and Lospennato and plaintiff’s intentional infliction of emotional distress claim against Advocacy Center.[1] The motion was set for submission on May 23, 2019.[2] Local Rules 7.5 of the United States District Court for the Eastern District of Louisiana requires that a memorandum in opposition to a motion must be filed no later than eight (8) days before the noticed submission date, which date would have been May 15, 2019. The submission date for the motion was May 23, 2019. No. opposition memorandum was filed by May 15, 2019. On May 16, 2019, the day after plaintiff’s opposition memorandum was due, the Court granted defendants’ Motion to Dismiss as unopposed.[3]

         On May 27, 2019, plaintiff filed a motion to vacate the Order of Dismissal arguing that dismissal of plaintiff’s claims prior to the submission date was premature and that plaintiff had intended to file a Motion for Extension of Time to file her response but was unable to do so for medical reasons. This Court granted the Motion to Vacate the Dismissal on September 13, 2019.[4]

         In the Order granting the Motion to Vacate, plaintiff was given ten (10) additional days from the date of the Order to file a response to defendants’ Rule 12(b)(6) motion for dismissal. Thereafter, on September 18, 2019, the Court held a Status Conference with counsel, including plaintiff Concepcion Otero, who is proceeding pro se, but is an attorney. The Court discussed the pending motion with all parties and reminded plaintiff of the deadline for any opposition memorandum. To date, plaintiff has not filed any response to defendants’ Rule 12(b)(6) Motion to Dismiss. The Court notes that it has provided plaintiff more than the ten (10) days allowed in its September 13, 2019 Order, in addition to the time plaintiff originally had pursuant to the Local Rules, to file any response memorandum in opposition.[5]

         Although the motion remains unopposed and could be granted on those grounds, the Court also finds that the motion has merit which supports this ruling. Plaintiff filed her complaint against her former employer, Advocacy Center of Louisiana, as well as employees Lois V. Simpson and Ronald K. Lospennato, asserting the following claims:

1. Violation of the Americans with Disabilities Act, 42 U.S.C. § 12010, et seq.,
2. Violation of the Age Discrimination and Employment Act, 29 U.S.C. § 621, et seq.,
3. Violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and
4. Intentional infliction of emotional distress under Louisiana Law.

         In its Motion to Dismiss, defendants assert, and the Court confirms, that the proper defendant under a Title VII, Age Discrimination and Employment Act, or Americans with Disabilities Act claim, is the claimant’s employer. Although the definition of an employer varies within each statute, the Court is satisfied that employees Simpson and Lospennato do not fall under the respective definitions of employer as the record reflects that neither defendant was plaintiffs employer. Those claims against defendants Simpson and Lospennato are DISMISSED. Further, as to the intentional infliction of emotional distress against the Advocacy Center as well as defendants Simpson and Lospennato, the Court finds that defendants’ Motion to Dismiss on this ground also has merit.

         IT IS ORDERED that defendants’ Motion to Dismiss (R.doc.12) is GRANTED and all of plaintiffs claims against Lois V. Simpson and Ronald K. Lospennato are DISMISSED with prejudice and plaintiffs intentional infliction of emotional distress claim against defendant, Advocacy Center of Louisiana, is DISMISSED with prejudice.

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