Charles v. PosiGen of Louisiana, LLC et al, No. 2:2015cv02270 - Document 39 (E.D. La. 2016)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendants 15 motion to dismiss is GRANTED. Plaintiff, however, may amend her complaint by June 30, 2016, to allege the date on which she received notice of her right to sue from the EEOC. IT IS FURTHER ORDERED that Plaintiffs Title VII claim for gender discrimination is DISMISSED WITHOUT PREJUDICE for failure to exhaust her administrative remedies. Signed by Judge Susie Morgan. (bwn)
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Charles v. PosiGen of Louisiana, LLC et al Doc. 39 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MICH ELLE CH ARLES, Plain tiff CIVIL ACTION VERSU S N O. 15 -2 2 70 POSIGEN OF LOU ISIAN A, ET AL. D e fe n d an ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is Defendants’ m otion to dism iss. 1 BACKGROU N D Plaintiff Michelle Charles (“Plaintiff”) brings this suit under Title VII of the Civil Rights Act of 1964 2 against her form er em ployer PosiGen. 3 Plaintiff worked for Defendants initially as a notary and then as a custom er service liaison. 4 Plaintiff alleges that, while em ployed with Defendants, she was “repeatedly overlooked for various jobs despite her academ ic credentials, positive recognition[,] and accolades on the job” an d “was asked to perform duties outside the scope of em ploym ent without com pensation.”5 Plaintiff further alleges that Defendants “m ade ongoing prom ises of advancem ent and prom otion but failed to take action” and that, while Defendants “repeatedly changed com pensation packages to avoid the payout of bonuses to Plaintiff,” Defendants “showered other em ployees with lavish gifts and unearned bonuses.”6 1 R. Doc. 15. 42 U.S.C. § 20 0 0 e, et seq. 3 The nam ed defendants in this action are PosiGen of Louisiana, LLC, PosiGen GP, LLC, PosiGen Energy Efficiency of Louisiana, LLC, PosiGen, LLC, Green Grants, PosiGen Solar Hot Water of Louisiana, LLC, and PosiGen Solar Solutions, LLC, (collectively, “Defendan ts”). 4 R. Doc. 1 at ¶ 17. 5 Id. at ¶ 19. 6 Id. at ¶ 26. 2 1 Dockets.Justia.com On Novem ber 5, 20 14, Plaintiff filed a charge of discrim ination on the basis of race with the Equal Em ploym ent Opportunity Com m ission (“EEOC”) against Defendants. 7 She asserted that the discrim ination occurred on Novem ber 3, 20 14. 8 The EEOC issued a right to sue notice on March 17, 20 15. 9 Plaintiff filed this suit on J une 22, 20 15, asserting claim s for gender and racial discrim ination pursuant to Title VII as well as state-law claim s for unpaid wages, unjust enrichm ent, breach of contract, detrim ental reliance, and violations of the Louisiana Unfair Trade Practices Act, Louisiana antitrust laws, and Louisiana labor laws. 10 On Novem ber 13, 20 15, Defendants filed a m otion to dism iss Plaintiff’s Title VII claim s pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 11 Defendants argue (1) Plaintiff failed to exhaust her adm inistrative rem edies with respect to her Title VII gender discrim ination claim , and (2) Plaintiff failed to tim ely file her Title VII racial discrim ination claim . 12 Plaintiff filed a response in opposition on J anuary 28 , 20 16. 13 Defendants filed a reply in support of their m otion on February 4, 20 16. 14 STAN D ARD OF LAW “Federal courts are courts of lim ited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claim s.”15 A m otion to dism iss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court’s subject-m atter 7 R. Doc. 1-1 at 3. Id. 9 R. Doc. 1-2 at 2. 10 R. Doc. 1 at ¶¶ 34– 66. 11 R. Doc. 15. 12 Id. 13 R. Doc. 28 . 14 R. Doc. 33. 15 In re FEMA Trailer Form aldehy de Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir. 20 12). 8 2 jurisdiction. 16 Under Rule 12(b)(1), “[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”17 The party asserting jurisdiction bears the burden of establishing that the district court possesses subject-m atter jurisdiction. 18 When deciding a m otion to dism iss, the Court accepts all well-pleaded facts as true and views those facts in the light m ost favorable to the plaintiff. 19 The Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public record, 20 and docum ents attached to a m otion to dism iss “when the docum ents are referred to in the pleadings an d are central to a plaintiff’s claim s.”21 If the Court accepts m aterials outside of the pleadings that do not fit within these param eters, the Court m ust treat the Rule 12(b)(6) m otion as a m otion for sum m ary judgm ent pursuant to Rule 56. 22 For the com plaint to survive a m otion to dism iss, the facts taken as true m ust state a claim that is plausible on its face. 23 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”24 “The plausibility standard is not akin to a probability requirem ent, but it asks for m ore than a sheer possibility that a defendant has 16 See F ED. R. CIV. P. 12(b)(1). Hom e Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (internal quotation m arks and citation om itted). 18 Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). 19 W hitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 20 13), cert. denied, 134 S. Ct. 1935, 188 (20 14). 20 See U.S. ex rel. W illard v. H um ana Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 20 0 3); Lovelace v. Softw are Spectrum Inc., 78 F.3d 10 15, 10 17– 18 (5th Cir. 1996); Baker v . Putn al, 75 F.3d 190 , 196 (5th Cir. 1996). 21 Brand Coupon N etw ork, L.L.C. v . Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir. 20 14). 22 F ED . R. CIV. P. 12(d). 23 Brand, 748 F.3d at 637– 38 . 24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). 17 3 acted unlawfully.”25 A com plaint is insufficient if it contains “only labels and conclusions, or a form ulaic recitation of the elem ents of a cause of action.”26 The Court cannot grant a m otion to dism iss under Rule 12(b)(6) “unless the plaintiff would not be entitled to relief under any set of facts that he could prove consistent with the com plaint.”27 “[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dism issing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to am end in a m anner that will avoid dism issal.”28 Leave to am en d should be “freely given.”29 AN ALYSIS I. Has Plaintiff Exhausted Her Adm in istrative Rem edies with Respect to Her Title VII Gender Discrim ination Claim ? Defendants argue Plaintiff has failed to exhaust her adm in istrative rem edies with respect to her Title VII claim for gen der discrim in ation. 30 Defendants argue that, as a result, this Court lacks subject-m atter jurisdiction over Plaintiff’s gender discrim in ation claim . 31 Plaintiff fails to respond to this argum ent. 32 Title VII m akes it unlawful for an em ployer to “fail or refuse to hire or to discharge any individual, or otherwise to discrim inate against any individual with respect to his com pensation, term s, conditions, or privileges of em ploym ent, because of such 25 Culbertson v. Ly kos, 790 F.3d 60 8, 616 (5th Cir. 20 15) (citation om itted) (internal quotation m arks om itted). 26 W hitley , 726 F.3d at 638 (citation om itted) (internal quotation m arks om itted). 27 Johnson v. Johnson, 385 F.3d 50 3, 529 (5th Cir. 20 0 4). 28 Great Plains Trust Co. v. Morgan Stanley Dean W itter & Co., 313 F.3d 30 5, 329 (5th Cir. 20 0 2). 29 United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398 , 40 3 (5th Cir.20 0 4). 30 R. Doc. 15-1 at 2– 6. 31 Id. 32 See R. Docs. 30 , 26-1. With respect to her gender discrim ination claim , Plaintiff argues only that her com plaint “alleged true and accurate legal claim s under Title VII on which relief can be granted for gender and racial discrim ination and/ or retaliation .” R. Doc. 30 at 1. 4 individual’s race . . . [or] sex . . . .”33 A plaintiff m ust exhaust her adm inistrative rem edies before bringing suit under Title VII. 34 “In order to file suit under Title VII, a plaintiff first m ust file a charge with the EEOC within 180 days of the alleged discrim inatory act. If and once the EEOC issues a right-to-sue letter to the party who has filed the EEOC charge, that party has 90 days to file a Title VII action.”35 The scope of the exhaustion requirem ent has been defined in light of two com peting Title VII policies that it furthers. 36 “On the one hand, because the provision s of Title VII were not designed for the sophisticated, and because m ost com plaints are initiated pro se, the scope of an EEOC com plaint should be construed liberally. On the other hand, a prim ary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attem pt to achieve non-judicial resolution of em ploym ent discrim ination claim s.”37 “There is som e am biguity in the Fifth Circuit regarding whether dism issal of a Title VII claim for failure to exhaust adm inistrative rem edies should be under Rule 12(b)(1) or Rule 12(b)(6).”38 This am biguity stem s from the “disagreem ent in this circuit on whether a Title-VII prerequisite, such as exhaustion, is m erely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirem ent that im plicates subject m atter jurisdiction.”39 While the Suprem e Court has held that the EEOC filing deadlin es are not jurisdictional, neither the Suprem e Court nor the Fifth Circuit has ruled that the 33 42 U.S.C. § 20 0 0 e-2(a)(1). Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 20 0 6). 35 Id. 36 Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 20 0 6). 37 Id. at 788 – 8 9. 38 Chhim v. Univ. of Houston Clear Lake, 129 F. Supp. 3d 50 7, 514 n.8 (S.D. Tex. 20 15). See also W illiam s v. E.I. du Pont de N em ours & Co., No. 14-382, 20 15 WL 95818 24, at *18 n.14 (M.D. La. Dec. 30 , 20 15). 39 Pacheco, 448 F.3d at 788 n .7. See also Chhim , 129 F. Supp. 3d at 514 n.8. 34 5 exhaustion requirem ent is jurisdictional. 40 Fifth Circuit panels are “in disagreem ent” over whether failure to exhaust is a prerequisite to federal subject-m atter jurisdiction. 41 Accordingly, the Court will analyze this issue under Rule 12(b)(6) but notes that whether Plaintiff’s claim for gender discrim ination is properly dism issed under Rule 12(b)(6) instead of Rule 12(b)(1) is not dispositive of this issue. 42 The Fifth Circuit “has held that a failure to allege sex discrim in ation in an EEOC charge properly results in dism issal of a subsequent com plaint for lack of exhaustion.”43 The scope of a Title VII com plaint is lim ited to the scope of the EEOC investigation that can reasonably be expected to grow out of the charge of discrim ination. 44 A charging party’s rights, however “should not be cut off m erely because he fails to articulate correctly the legal conclusion em anating from his factual allegations. Instead, the proper question is whether the charge has stated sufficient facts to trigger an EEOC investigation, and to put an em ployer on notice of the existence and nature of the charges against him .”45 On Plaintiff’s charge of discrim ination, Plaintiff checked only the box next to “race,” indicating she alleged discrim in ation based on race. 46 She did not check the box next to “sex” or any other category. In the “particulars” section of the charge, Plaintiff explain ed as follows: On October 12, 20 14 I subm itted m y resum e for the position of Custom er Service Manager. On Novem ber 3, 20 14, Crystal Burhnam (W), who was hired J anuary 20 13 and perform ed the duties of Docum ent Control Lead was prom oted to the position of Acting Custom er Service Manager. . . . 40 Pacheco, 448 F.3d at 788 n .7. 41 Id. 42 See Chhim , 129 F. Supp. 3d at 514 n.8 . Mack v. John L. W ortham & Son, L.P., 541 F. App’x 348, 358 (5th Cir. 20 13) (per curiam ). See Young v. City of Hous., 90 6 F.2d 177, 179 (5th Cir. 1990 ). 44 Thom as v. Texas Dep’t of Crim inal Justice, 220 F.3d 389, 395 (5th Cir. 20 0 0 ); Mack, 541 F. App’x at 358 . 45 Sim m ons-My ers v. Caesars Entm ’t Corp., 515 F. App’x 269, 272 (5th Cir. 20 13) (per curiam ) (citin g Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970 ); Manning v. Chevron Chem . Co., 332 F.3d 874, 878 (5th Cir. 20 0 3)). 46 R. Doc. 1-1 at 3. 43 6 I was told by Ms. Hirsch, Custom er Service Advocate[,] that I did not get the prom otion because she trusted that Ms. Burhnam could get the departm ent in shape. Ms. Burhnam has no sales experience. I believe I was den ied the prom otion because of m y race, Black, in violation of Title VII of The Civil Rights Act of 1964, as am ended. 47 Although which boxes a claim ant checks on the charge is not exclusively determ in ative of which claim s she m ay pursue in court, it is indicative of which claim s she inten ded to pursue. 48 In Frazier v. Sabine River Authority Louisiana, although the plaintiff m ade a claim in court for retaliation, he did not check the “retaliation” box on his charge of discrim ination and, in the particulars section, failed to m ention any claim of retaliation. 49 The plaintiff argued on appeal that failure to check the appropriate box was not fatal to his retaliation claim . 50 The Fifth Circuit explained, “While the court’s scope of inquiry is not lim ited to the boxes checked, it is lim ited to that which can reasonably be expected to grow out of the charge. [T]he crucial elem ent of a charge of discrim ination is the factual statem ent contained therein. Everything else entered on the form is, in essence, a m ere am plification of the factual allegations.”51 The Fifth Circuit affirm ed the district court’s finding that the plaintiff did not preserve a retaliation claim because the factual statem ent in his EEOC charge “did not put [the defendant] on notice that [the plaintiff] was asserting a retaliation claim .”52 47 Id. See Gunn ell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10 th Cir. 1998) 49 Frazier v. Sabine River Auth. La., 50 9 F. App’x 370 , 373– 74 (5th Cir. 20 13) (per curiam ). 50 Id. at 374. 51 Id. (citations om itted) (internal quotation m arks om itted). 52 Id. 48 7 Here, Plaintiff checked only the box next to “race.” She did not provide any basis for a gender or sex discrim in ation claim in her charge. 53 Indeed, in the “particulars” section, Plaintiff noted that another wom an with less experience was prom oted over her. 54 Plaintiff also expressly stated in the charge that she believes she was denied the prom otion because of her race. 55 She m ade no m ention of her gender or sex. 56 “One of the central purposes of the em ploym ent discrim ination charge is to put em ployers on notice of ‘the existen ce and nature of the charges against them .’ In order to adequately notify em ployers about the nature of the charges against them , em ployees m ust in form their em ployers from the outset about their claim s of discrim ination.”57 Plaintiff’s charge failed to put Defendants on notice that she was raising a claim for gender discrim ination. The Court finds Plaintiff has failed to exhaust her Title VII claim for gender discrim ination and her com plaint exceeds the scope of the EEOC investigation that can reasonably be expected to grow out of her charge of discrim ination. 58 “A Title VII suit m ay extend as far as, but not further than, the scope of the EEOC investigation which could reasonably grow out of the adm inistrative charge.”59 Accordingly, because plaintiffs m ust “exhaust their adm in istrative rem edies before bringing suit under Title VII,” the Court cannot grant Plaintiff relief on her Title VII claim for gender discrim ination. Plaintiff’s Title VII claim for gender discrim ination m ust be dism issed without prejudice for failure to exhaust. 60 53 See R. Doc. 1-1 at 3. Id. 55 Id. 56 See id. 57 Manning, 332 F.3d at 878 – 79 (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984)). 58 Thom as, 220 F.3d at 395; Mack, 541 F. App’x at 358. 59 See also Sim m ons-My ers, 515 F. App’x at 272 (quotin g Fine v . GAF Chem . Corp., 995 F.2d 1112, 1123 (5th Cir. 1981)) (internal quotation m arks om itted). 60 See Price, 459 F.3d at 598. 54 8 II. Is Plaintiff’s Title VII Race Discrim ination Claim Tim e-Barred? Defendants argue Plaintiff’s Title VII claim for discrim ination on the basis of race should be dism issed because it was filed beyond the statutory deadline. 61 A plaintiff alleging em ploym ent discrim in ation under Title VII m ust file suit no m ore than 90 days after she receives statutory notice of her right to sue from the EEOC. 62 Title VII provides “in n o uncertain term s that the ninety-day period of lim itations begins to run on the date that the EEOC right-to-sue letter is received.”63 The requirem ent that a plaintiff file a lawsuit within this nin ety-day period is “strictly construed.”64 In Plaintiff’s com plaint, Plaintiff alleges that, “[o]n or about March 22, 20 15,” the EEOC issued the right-to-sue notice. 65 This, however, is contradicted by the right-to-sue notice attached to Plaintiff’s com plaint, which states it was m ailed on March 17, 20 15. 66 The notice clearly states, “Your lawsuit under Title VII . . . m u s t be file d in a fe d e ral o r s ta te co u rt W ITH IN 9 0 D AYS o f yo u r re ce ip t o f th is n o tice [] or your right to sue based on this charge will be lost.”67 Plaintiff filed suit on J une 22, 20 15. 68 In Plaintiff’s opposition attached to her m otion for leave to file an opposition, Plaintiff stated she “did not receive that notice until March 24, 20 15.”69 In the sam e paragraph, she subsequently stated that “the earliest the Plaintiff would have received m ail from the EEOC would have been March 23 or March 24, 20 15.”70 In the opposition 61 R. Doc. 15-1 at 6– 7. 42 U.S.C. § 20 0 0 e-5(f)(1); Duron v. Albertson’s LLC, 560 F.3d 28 8, 290 (5th Cir. 20 0 9) (per curiam ). 63 Tay lor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 20 0 2). 64 Gam el v. Grant Prideco, L.P., 625 F. App’x 690 , 694 (5th Cir. 20 15) (per curiam ) (quoting Tay lor, 296 F.3d at 379). 65 Id. at ¶ 15. 66 R. Doc. 1-2 at 2. 67 Id. 68 See R. Doc. 1. 69 R. Doc. 26-1 at 2. 70 Id. at 3. 62 9 Plaintiff filed after the Court granted leave, Plaintiff rem oved the latter statem ent and m aintain ed only that she “received her right to sue letter on March 24, 20 15.”71 On a m otion to dism iss, however, the Court m ay consider only the pleadings, the docum ents attached to or incorporated by reference in the plaintiff’s com plaint, the facts of which judicial notice m ay be taken, m atters of public record, and docum ents attached to a m otion to dism iss when the docum ents are referred to in the pleadin gs and are central to a plaintiff’s claim s. 72 Plaintiff fails to allege in her com plaint when she received the right-to-sue letter. The Fifth Circuit recently held that, “where the date of receipt [of a right-to-sue letter] is not known, courts should apply a presum ption that the plaintiff received the notice in three days.”73 The Fifth Circuit has explained that applying a presum ption of receipt is appropriate when the plaintiff fails to allege the specific date on which she actually received the right-to-sue letter and the date the letter was received is unknown. 74 Thus, the Court presum es Plaintiff received the right-to-sue letter on March 20 , 20 15, three days after the m ailing date on the right-to-sue notice. 75 Plaintiff filed her suit on J une 22, 20 15, 94 days after she presum ably received the letter. The Court reiterates that the 90 -day filing deadline is “strictly construed.”76 Accordingly, Plaintiff’s com plaint is untim ely. The 71 R. Doc. 30 at 1. Brand Coupon, 748 F.3d at 635; Hum ana, 336 F.3d at 379; Lovelace, 78 F.3d at 10 17– 18; Baker, 75 F.3d at 196. 73 Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d 263, 267 (5th Cir. 20 15). 74 Tay lor, 296 F.3d at 379. See also Lee v . Colum bia/ HCA of N ew Orleans, Inc., 611 F. App’x 810 , 812 (5th Cir. 20 15) (per curiam ) (“In the absence of a concrete allegation to the contrary, we presum e that a claim ant receives an EEOC right-to-sue letter within three days after it is m ailed.”). 75 See R. Doc. 1-2 at 2. 76 Gam el, 625 F. App’x at 694. See, e.g., Bow ers v . Potter, 113 F. App’x 610 , 613 (5th Cir. 20 0 4) (per curiam ) (noting that a com plaint filed two days after the 90 -day deadline would be subject to dism issal); Tay lor, 296 F.3d at 379 (“Courts within this Circuit have repeatedly dism issed cases in which the plaintiff did not file a com plaint until after the ninety-day lim itation period had expired.”); Dorest v. Piney Point Surgical Ctr., No. 10 -0 390 8, 20 11 WL 2633575, at *2 (S.D. Tex. J uly 5, 20 11) (dism issing case where plaintiff filed her com plaint at least 93 days after she alleged her right-to-sue letter was sent); Morgan v. Potter, No. 0 52860 , 20 0 6 WL 380 548, at *2 (E.D. La. Feb. 13, 20 0 6), aff’d, 48 9 F.3d 195 (5th Cir. 20 0 7) (dism issing the 72 10 Court grants the m otion to dism iss Plaintiff’s Title VII claim for race discrim ination without prejudice. Plaintiff m ay am end her com plaint to allege the date on which she received the right-to-sue letter by Ju n e 3 0 , 2 0 16 . 77 Failure to do so will result in dism issal of her claim with prejudice. 78 CON CLU SION For the foregoing reasons; IT IS ORD ERED that Defendants’ m otion to dism iss is GRAN TED . Plaintiff, however, m ay am end her com plaint by Ju n e 3 0 , 2 0 16 , to allege the date on which she received notice of her right to sue from the EEOC. IT IS FU RTH ER ORD ERED that Plaintiff’s Title VII claim for gender discrim ination is D IS MISSED W ITH OU T PREJU D ICE for failure to exhaust her adm in istrative rem edies. N e w Orle a n s , Lo u is ian a, th is 17th d ay o f Ju n e , 2 0 16 . ________ _______________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE plaintiff’s com plaint as untim ely because it was filed 92 days after the plaintiff presum ptively received her right-to-sue letter from the EEOC and the plaintiff “ha[d] not alerted the Court to any circum stances which would warrant the tolling of the ninety-day period n or ha[d] she disputed the date by which she was presum ed to have received her notice of right-to-sue”); Butler v. Orleans Par. Sch. Bd., No. 0 0 -0 845, 20 0 1 WL 1135616, at *1 (E.D. La. Sept. 25, 20 0 1) (dism issing Title VII claim s where plain tiff filed suit ninety-one days after receivin g her right-to-sue notice). 77 See Great Plains, 313 F.3d at 329 (“[D]istrict courts often afford plaintiffs at least one opportun ity to cure pleadin g deficiencies before dism issin g a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwillin g or unable to am end in a m an ner that will avoid dism issal.”); United States ex rel. Adrian, 363 F.3d at 40 3 (“Leave to am en d should be freely given.”). 78 See Dorest, 20 11 WL 2633575, at *2. 11
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