Schaefer v. Peralta, et al., No. 2:2016cv17784 - Document 95 (E.D. La. 2017)
Court Description: ORDER AND REASONS - the Court denies defendants' motions 69 72 to strike; grants in part and denies in part defendants' motions 41 54 57 59 to dismiss; and, upon reconsideration of the Magistrate Judge's order 82 , grants plaintiff's motion to amend her complaint.. Signed by Judge Sarah S. Vance on 12/7/17. (jjs)
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Schaefer v. Peralta, et al. Doc. 95 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SHARON SCHAEFER CIVIL ACTION VERSUS NO. 16-17784 DAVID PERALTA ET AL. SECTION “R” (3) ORD ER AN D REASON S Defendants m ove to dism iss plaintiff’s first am ended complaint, 1 and m ove to strike plaintiff’s oppositions to the m otions to dism iss. 2 Additionally, plaintiff filed a m otion to am end her complaint, which the Magistrate J udge denied. 3 For the following reasons, the Court denies defendants’ m otions to strike; grants in part and denies in part defendants’ m otions to dism iss; and, upon reconsideration of the Magistrate J udge’s order, grants plaintiff’s m otion to amend her com plaint. I. BACKGROU N D Plaintiff Sharon Schaefer was an employee of St. Bernard Parish. In 20 0 8, when she was a legal secretary at the parish governm ent com plex, she 1 2 3 R. Docs. 41, 54, 57, 59. R. Docs. 69, 72. R. Doc. 82. 1 Dockets.Justia.com developed a romantic relationship with David Peralta, then-Chief Adm inistrative Officer of the parish. 4 In 20 10 , plaintiff was transferred to work in the public defender’s office, and in 20 11, Peralta was elected Parish President. 5 Plaintiff and Peralta were m arried on March 31, 20 12. 6 Shortly thereafter, plaintiff was transferred back to the parish governm ent complex, where her im mediate supervisor was J erry Graves, J r. 7 In September 20 13, plaintiff witnessed fellow em ployee Donald Bourgeois gambling at work, and reported this conduct to the parish conflict attorney, Sharon William s. 8 Peralta allegedly attacked plaintiff verbally for reporting this conduct to William s, and suspended plaintiff for three days without pay. 9 On October 27, 20 13, Peralta allegedly raped plaintiff in a torture cham ber, with ropes hanging from the ceiling and arm and leg restraints nailed to the wall, which he had prepared in his and plaintiff’s hom e. 10 Peralta then prevented plaintiff from leaving the home. 11 Once she was able 4 5 6 7 8 9 10 11 R. Doc. 44 at 4 ¶¶ 9-11. Id. at 5 ¶¶ 14, 16. Id. at 5-6 ¶ 19. Id. at 6 ¶¶ 21-22. Id. ¶ 23. Id. at 6-7 ¶¶ 24-25. Id. at 7-8 ¶¶ 29-34. Id. at 8 ¶ 34. 2 to escape, plaintiff im m ediately reported the rape to the police. 12 On October 28, plaintiff went to her workplace to request leave, but Peralta’s personal attorney allegedly accosted her and brought her to Peralta’s office. 13 According to plaintiff, after Peralta apologized to her, he grabbed her and dug his fingers into her shoulder, threatened to fire her if she did not drop the charges, and struck her when she refused to do so. 14 Plaintiff alleges that Peralta then forced her to walk out of the building while holding his hand in case any media were present. 15 In early December 20 13, plaintiff allegedly complained about Peralta’s conduct internally, including to fellow em ployee Billy McGoey. 16 Plaintiff alleges that Peralta verbally attacked her for complaining about him, and forced her to take a leave of absence. 17 Plaintiff also filed a charge of discrim ination and retaliation with the EEOC on Decem ber 23, 20 13. 18 Plaintiff alleges various other instances of harassm ent by Peralta, William s, and McGoey, including Peralta’s m aking knowingly false 12 13 14 15 16 17 18 Id. ¶¶ 35-37. Id. at 9 ¶¶ 39-40 . Id. ¶¶ 41-43. Id. ¶ 43. Id. at 10 ¶¶ 46-47. Id. ¶ 46. R. Doc. 82-5. 3 statements about plaintiff’s m ental health and professional aptitude. 19 Plaintiff also alleges that Peralta and McGoey filed false police reports against plaintiff in retaliation for her refusal to withdraw her rape com plaint, and that Peralta wrote an extortion letter threatening to release intim ate photographs of plaintiff. 20 On March 19, 20 14, a judge signed a perm anent restraining order prohibiting Peralta from contacting or interacting with plaintiff. 21 Plaintiff was term inated by the parish governm ent on April 2, 20 14. 22 Plaintiff filed this lawsuit on December 23, 20 16. 23 Initially, she brought a number of state law and federal claim s, including a Title VII claim for hostile work environm ent and retaliation. She filed an am ended com plaint as of right on May 10 , 20 17. 24 Several claim s from her original com plaint, including her Title VII claim for hostile work environment, are not present in the first amended com plaint. Besides Peralta, the rem aining defendants are St. Bernard Parish, St. Bernard Parish Council, William s, McGoey, Graves, and St. Bernard Parish Councilm an at Large Guy McGinnis 19 20 21 22 23 24 R. Doc. 44 at 12 ¶ 55. Id. ¶¶ 56, 58. Id. ¶ 59. Id. at 13 ¶ 60 . R. Doc. 1. R. Doc. 44. 4 (collectively, the St. Bernard Defendants). Defendants have filed m ultiple m otions to dism iss, and m otions to strike plaintiff’s responses to those m otions as untim ely. On August 30 , 20 17, plaintiff m oved for leave to file a second amended com plaint, which reincorporated her Title VII hostile work environment claim and added additional factual allegations. This m otion was referred to the Magistrate J udge, who denied it because of the pending m otion to dism iss. 25 II. D ISCU SSION A. Mo tio n to Strike Defendants m ove to strike plaintiff’s oppositions to defendants’ m otions to dism iss as untim ely. The St. Bernard Defendants set their m otions to dism iss for subm ission on August 30 , 20 17. 26 Under the Local Rules, plaintiff’s opposition was due eight days earlier on August 22. See L.R. 7.5. Plaintiff filed her opposition one day late. 27 Peralta also m oves to strike plaintiff’s opposition as untim ely, but plaintiff filed her opposition to Peralta’s m otion well in advance of the September 27 submission date. 28 25 26 27 28 R. Doc. 94. R. Docs. 57, 59. R. Doc. 65. See R. Docs. 54-2, 64. 5 The Court has broad discretion to extend filing deadlines and to accept late-filed m otion papers. See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360 , 367 (5th Cir. 1995). Because the St. Bernard Defendants do not assert, and the Court does not discern, any prejudice from the short delay, the Court declines to strike plaintiff’s opposition as untim ely. B. Mo tio n to D is m is s To survive a Rule 12(b)(6) m otion to dism iss, plaintiffs m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). 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.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that plaintiffs’ claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. 6 at 555. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiffs’ claim. Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. In considering a m otion to dism iss for failure to state a claim , a court typically “m ust lim it itself to the contents of the pleadings,” including their attachm ents. Collins v. Morgan Stanley Dean W itter, 224 F.3d 496, 498 (5th Cir. 20 0 0 ). “If, on a m otion under Rule 12(b)(6) . . . , m atters outside the pleadings are presented to and not excluded by the court, the m otion m ust be treated as one for sum m ary judgm ent under Rule 56.” Fed. R. Civ. P. 12(d). But a court m ay consider “docum ents incorporated into the com plaint by reference, and m atters of which a court m ay take judicial notice,” without converting the m otion into one for summ ary judgm ent.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 30 8, 322 (20 0 7). 7 1. St a t u t e o f lim it a t io n s Turning to defendants’ m otions to dism iss, defendants first argue that plaintiff’s claim s are tim e-barred or prescribed. 29 “A statute of lim itations m ay support dism issal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 20 0 3). Plaintiff does not contest that m ost of her claim s, apart from retaliation, are tim e-barred. The Court nevertheless addresses each claim in turn. First, plaintiff’s state law claim s for intentional infliction of em otional distress, defam ation, and false im prisonm ent, and her federal claim s for violations of 42 U.S.C. §§ 1983, 1985, and 1986, are tim e-barred. The prescriptive period for m ost Louisiana torts—including intentional infliction of em otional distress, defamation, and false imprisonm ent—is one year. La. Civ. Code art. 3492; King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999) (“Claim s for intentional infliction of emotional distress are also governed by the one-year prescriptive period for delictual actions . . . .”); Godfrey v. Reggie, 94 So. 3d 82, 89 (La. App. 3 Cir. 20 12) (noting that false im prisonment claim is subject to one-year prescriptive period); Ly ons v. 29 R. Doc. 41-1 at 7-10 ; R. Doc. 54-1 at 4-6; R. Doc. 57-1 at 5-6. 8 Knight, 65 So. 3d 257, 260 (La. App. 3 Cir. 20 11) (“Defam ation is a delictual action subject to a one-year liberative prescription.”). Plaintiff’s claim under 42 U.S.C. § 1986 also has a one-year statute of lim itations. 42 U.S.C. § 1986 (“[N]o action under the provisions of this section shall be sustained which is not com m enced within one year after the cause of action has accrued.”). Additionally, although 42 U.S.C. §§ 1983 and 1985 contain no express lim itations period, courts apply the statute of lim itations for the analogous state law action—here, the one-year prescriptive period for Louisiana torts. See Helton v. Clem ents, 832 F.2d 332, 334 (5th Cir. 1987). Based on the com plaint, the conduct relevant to these claim s occurred between Septem ber 20 13 and April 20 14, when plaintiff was term inated from her position. Thus, plaintiff’s claim s for claim s for intentional infliction of em otional distress, defam ation, false im prisonm ent, and violations of 42 U.S.C. §§ 1983, 1985, and 1986 accrued no later than April 20 14 and prescribed before plaintiff filed suit in December 20 16. Second, plaintiff’s claim s for assault and battery and sexual assault and sexual battery have longer prescriptive periods, but are still prescribed. Torts arising from crimes of violence prescribe after two years. La. Civ. Code art. 3493.10 . A tort arising from sexual assault prescribes after three years. Id. 9 art. 3496.2. Peralta allegedly committed sexual assault and battery in October 20 13. 30 Thus, these claim s prescribed before Decem ber 20 16. Third, plaintiff’s state law claim for retaliation is prescribed. State law claim s for retaliation prescribe after one year. La. R.S. § 23:30 3(D). This prescriptive period is “suspended during the pendency of any adm inistrative review,” but only up to six m onths. Id. Thus, plaintiff had a m axim um of eighteen m onths from her term ination in April 20 14 in which to file suit for retaliation under Louisiana law. Her state law claim for retaliation therefore prescribed before she filed suit in Decem ber 20 16. Finally, plaintiff’s federal retaliation claim is not tim e-barred. Title VII claim s for retaliation m ust be brought within 90 days after receipt of a rightto-sue letter from the EEOC. 42 U.S.C. § 20 0 0 e-5(f)(1); Tay lor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 20 0 2). An EEOC charge of retaliation, in turn, m ust be filed within 30 0 days after the retaliation occurred. 42 U.S.C. § 20 0 0 e-5(e)(1). The EEOC’s notice of plaintiff’s right to sue is dated Septem ber 29, 20 16—fewer than 90 days before plaintiff filed suit. 31 In addition, plaintiff filed her EEOC charge of discrim ination and retaliation on Decem ber 23, 20 13—well within 30 0 days of when plaintiff 30 31 R. Doc. 44 at 7-8 ¶¶ 30 -33, 9 ¶¶ 42-43. R. Doc. 64-1. 10 allegedly began to experience discrim ination and retaliation in September 20 13. 32 Thus, these docum ents indicate that plaintiff tim ely filed her EEOC charge and filed suit within Title VII’s lim itations period. 2 . Pla in t iff’s cla im fo r r e t a lia t io n Defendants also argue that plaintiff fails to state a claim for retaliation because she did not allege adm inistrative exhaustion and because she did not allege facts supporting a prim a facie showing of retaliation. 33 Adm inistrative exhaustion is a prerequisite to filing suit under Title VII in district court. See Tay lor, 296 F.3d at 378-79. As explained earlier, plaintiff tim ely filed her EEOC charge of discrim ination and retaliation. Although she does not allege adm inistrative exhaustion in her com plaint, it is enough that EEOC docum ents show that she exhausted her Title VII claim . See Tellabs, 551 U.S. at 30 8 (“[C]ourts must consider the com plaint in its entirety, as well as other sources courts ordinarily exam ine when ruling on Rule 12(b)(6) m otions to 32 R. Doc. 82-5. The Court takes judicial notice of the facts contained within the EEOC right-to-sue letter and charge as public records. See W ilson v. Lockheed Martin Corp., No. 0 3-2276, 20 0 3 WL 22384933, at *2 (E.D. La. Oct. 15, 20 0 3) (taking judicial notice of EEOC docum ents as a m atter of public record); Prew itt v. Cont’l Auto., 927 F. Supp. 2d 435, 447 (W.D. Tex. 20 13) (sam e). Consideration of these facts does not convert a m otion to dism iss to a m otion for summ ary judgm ent. Funk v. Stry ker Corp., 631 F.3d 777, 782-83 (5th Cir. 20 11); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). 33 R. Doc. 41-1 at 22-28; R. Doc. 54-1 at 11-13; R. Doc. 57-1 at 10 -11. 11 dism iss, in particular, docum ents incorporated into the com plaint by reference, and m atters of which a court m ay take judicial notice.”). Plaintiff also alleges sufficient facts to support a prima facie showing of retaliation. Title VII m akes it unlawful for an em ployer to discrim inate against an employee who has opposed an em ploym ent practice m ade unlawful by Title VII. 42 U.S.C. § 20 0 0 e-3(a). In order to state a retaliation claim , a plaintiff must allege “(1) that [she] engaged in activity protected by Title VII, (2) that an adverse employm ent action occurred, and (3) that a causal link existed between the protected activity and the adverse action.” Raggs v. Miss. Pow er & Light Co., 278 F.3d 463, 471 (5th Cir. 20 0 2). “An em ployee has engaged in protected activity when she has (1) ‘opposed any practice m ade an unlawful em ploym ent practice’ by Title VII or (2) ‘m ade a charge, testified, assisted, or participated in any m anner in an investigation, proceeding, or hearing’ under Title VII.” Douglas v. Dy nMcDerm ott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (quoting 42 U.S.C. § 20 0 0 e-3(a)). Defendants contend that plaintiff fails to allege either that she engaged in protected activity or that this protected activity caused adverse em ploym ent actions. The com plaint points to two exam ples of protected 12 activity. First, plaintiff reported a colleague for gambling at work. 34 Second, plaintiff reported Peralta for his actions against her. 35 Specifically, plaintiff filed a crim inal com plaint against Peralta, internally com plained about his discrim inatory conduct, reported his conduct to one of her supervisors, and sought a restraining order against Peralta. 36 Plaintiff also filed a charge of discrim ination and retaliation with the EEOC. Title VII does not prohibit gambling at work, so that plaintiff’s reporting of a colleague for gambling does not qualify as protected activity. But Title VII does prohibit harassment that creates a hostile work environment based on gender. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 20 12). Plaintiff’s filing of a charge of discrim ination, com plaining of a hostile work environm ent, was per se protected activity. See Douglas, 144 F.3d at 372. Whether plaintiff’s other actions—filing a crim inal com plaint against Peralta, internally com plaining about him, and seeking a restraining order against him—also constitute protected activity turns on whether plaintiff reasonably believed that the conduct she opposed violated Title VII. EEOC v. Rite W ay Serv., Inc., 819 F.3d 235, 240 (5th Cir. 20 16). 34 35 36 R. Doc. 44 at 6 ¶ 23, 18 ¶ 82. R. Doc. 44 at 18 ¶ 84. Id. at 10 ¶¶ 45-47, 12 ¶ 59. 13 Plaintiff asserts that Peralta created a hostile work environm ent by confronting her the day after he allegedly raped her, verbally and physically threatening her if she did not withdraw her com plaint, hitting her, and forcing her to walk out of Peralta’s office building while holding his hand. 37 Peralta allegedly attacked plaintiff verbally on several later occasions for com plaining about his conduct. 38 In addition, Peralta allegedly m ade false statements about plaintiff’s mental health, integrity, and professional aptitude, filed false police reports against her, and wrote an extortion letter threatening to release intim ate photographs of plaintiff. 39 Assum ing the allegations in plaintiff’s com plaint are true, it would have been reasonable to believe that Peralta’s conduct created a hostile work environment in violation of Title VII. A prim a facie case of a hostile work environment by coworkers requires proof of five elem ents: (1) the plaintiff belongs to a protected group; (2) she was subjected to unwelcom e sexual harassm ent; (3) the harassm ent com plained of was based on sex; (4) the harassm ent affected a term , condition, or privilege of her em ployment; and (5) her em ployer knew or should have known of the harassment and failed to take prompt remedial action. Hockm an v. W estw ard Com m c’ns, LLC, 40 7 F.3d 317, 325 (5th Cir. 20 0 4). 37 38 39 R. Doc. 44 at 9 ¶¶ 42-43; R. Doc. 65 at 9-10 . Id. at 10 ¶¶ 45-46. Id. at 12 ¶¶ 55-56, 58. 14 The Fifth Circuit has held that a pattern of harassment, even if it is not sexual in nature, m ay be based on sex if it follows the term ination of a rom antic relationship. Green v. Adm ’rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 20 0 2), overruled on other grounds by Burlington N. & Santa Fe Ry . Co. v. W hite, 548 U.S. 53 (20 0 6). Because plaintiff alleges that Peralta’s pattern of harassment followed his alleged rape of plaintiff, and occurred while their rom antic relationship deteriorated, she has asserted sufficient facts to support the first three prongs of the hostile work environment test. Moreover, Peralta’s alleged conduct—including physical threats, hum iliating actions, and other instances of abuse that interfered with plaintiff’s work perform ance—was sufficiently severe or pervasive to affect a term, condition, or privilege of em ployment. See Hernandez, 670 F.3d at 651. Finally, plaintiff’s allegations plausibly support the inference that her supervisors were aware of the harassment, and not only failed to take remedial action, but also participated in the harassm ent. And to the extent Peralta exerted supervisory authority over plaintiff, St. Bernard Parish is vicariously liable. See Faragher v. City of Boca Raton, 524 U.S. 775, 80 7 (1998) (“An em ployer is subject to vicarious liability to a victim ized employee for an actionable hostile environment created by a supervisor with im m ediate (or successively higher) authority over the employee.”). 15 By lodging internal com plaints about Peralta’s harassment, plaintiff opposed behavior she reasonably believed violated Title VII, thereby engaging in protected activity. See Green, 284 F.3d at 657 (noting that internal com plaints about sex discrim ination constitute protected activity). Plaintiff further opposed Peralta’s harassm ent by filing crim inal charges and seeking a restraining order against him. Although defendants concede that plaintiff’s term ination was an adverse employment action, they argue that plaintiff fails to allege a causal link between her protected activity and her term ination. At the prim a facie stage, “the standard for satisfying the causation element is ‘m uch less stringent’ than a ‘but for’ causation standard.” Ackel v. N at’l Com m c’ns, Inc., 339 F.3d 376, 385 (5th Cir. 20 0 3) (quoting Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 20 0 1)). The plaintiff m ay establish a causal link by showing that the em ployer based its decision to term inate her in part on knowledge of her protected activity. See id. (citing Medina v. Ram sey Steel Co., 238 F.3d 674, 684 (5th Cir. 20 0 1)). Courts have also found that “[c]lose tim ing between an em ployee’s protected activity and an adverse action against [her] m ay provide the causal connection required to m ake out a prim a facie case of retaliation.” Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 20 0 1) (alteration in original) (quoting Swanson v. Gen. Servs. 16 Adm in., 110 F.3d 1180 , 1188 (5th Cir. 1997)). A lapse of four m onths m ay be sufficient to raise an inference of causation. See id. While plaintiff’s com plaint does not clearly tie her term ination to any particular protected activity, it is reasonable to infer that St. Bernard Parish term inated her employm ent because of her opposition to the harassing conduct of Peralta, the Parish president. Plaintiff was term inated fewer than four m onths after she filed her EEOC charge and internally reported Peralta’s conduct, and less than one m onth after she obtained a restraining order against Peralta. Moreover, plaintiff alleges that Peralta verbally attacked her for com plaining about his discrim inatory conduct. 40 These facts suffice to raise a plausible inference of causation. Plaintiff therefore alleges a prim a facie claim of retaliation. Although plaintiff’s com plaint does state a claim for retaliation, Title VII creates liability only for an em ployer. 42 U.S.C. § 20 0 0 e-3(a). According to plaintiff’s com plaint, St. Bernard Parish—not St. Bernard Parish Council— was her employer. 41 Moreover, a com plainant’s coworkers and supervisors, in either their official or personal capacities, are not subject to liability under the statute. See Ackel, 339 F.3d at 382 n.1 (“Individuals are not liable under 40 41 R. Doc. 44 at 10 ¶ 46. Id. at 4 ¶ 9. 17 Title VII in either their individual or official capacities.”). Thus, plaintiff’s Title VII claims against the individual defendants and St. Bernard Parish Council m ust be dism issed. C. Mo tio n to Am e n d Finally, the Court addresses plaintiff’s m otion for leave to am end her com plaint. Plaintiff’s proposed second am ended com plaint differs from her first am ended complaint prim arily in that it adds a Title VII claim for hostile work environment. 42 Plaintiff’s counsel states that this claim , which was present in the original com plaint, was inadvertently left out of the first am ended com plaint. 43 The second am ended com plaint also contains additional factual allegations, m ost notably that she tim ely filed a charge of discrim ination and retaliation with the EEOC. The St. Bernard Defendants opposed the m otion, and Peralta m oved to strike the second amended com plaint. 44 Plaintiff’s m otion to amend was referred to the Magistrate J udge, who denied it on the grounds that the m otion was unduly delayed and that this Court should adjudicate the pending m otions to dism iss before plaintiff’s com plaint is am ended a third tim e. 45 42 43 44 45 See R. Doc. 82. R. Doc. 82-1 at 1. R. Docs. 87, 91. R. Doc. 94. 18 Although plaintiff did not object to the Magistrate J udge’s ruling, the Court m ay review it sua sponte if it was clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); see also Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995) (holding that m agistrate judge rulings are reviewable by district court even if no objection is filed). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a m istake has been com m itted.” United States v. U.S. Gy psum Co., 333 U.S. 364, 395 (1948). Under Federal Rule of Civil Procedure 15, the Court “should freely give leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to allow am endm ent of the com plaint, the Court m ust consider any “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by amendm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the am endment, [and] futility of am endm ent.” Fom an v. Davis, 371 U.S. 178, 182 (1962); Sm ith v. EMC Corp., 393 F.3d 590 , 595 (5th Cir. 20 0 4). “[U]nless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to perm it denial.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (Form er 5th Cir. 1981). 19 In denying plaintiff’s m otion, the Magistrate J udge noted that defendants’ m otions to dism iss should be adjudicated before plaintiff has another opportunity to am end her com plaint. Having now adjudicated defendants’ m otion to dism iss, the Court finds that justice requires leave to am end, and that denial of plaintiff’s m otion to am end is clear error. The Magistrate J udge found that plaintiff’s am endment was unduly delayed. But plaintiff sought to file her second am ended complaint within the tim e allotted for am endm ents to pleadings. 46 Moreover, this litigation has not yet proceeded past the m otion to dism iss stage. Cases in which courts deny leave to am end for undue delay generally involve m otions to am end filed m uch later in the proceedings. See, e.g., Sm ith, 393 F.3d at 595-96 (affirm ing district court’s denial of m otion to add a fraud claim when m otion was filed during trial). Furtherm ore, plaintiff asserts that the delay was caused by plaintiff’s counsel’s inadvertence in rem oving the Title VII claim from the com plaint. See id. at 595 (noting that if plaintiff’s am endm ent were unduly delayed, plaintiff would bear the “burden of showing the delay to be ‘due to oversight, inadvertence, or excusable neglect’” (quoting W hitaker v. City of Houston, 963 F.2d 831, 836 (5th Cir. 1992))). The Court thus does not find 46 See R. Doc. 81 at 2. 20 that plaintiff unduly delayed in seeking to replead this inadvertently rem oved cause of action. The St. Bernard Defendants argue that this am endment would unduly prejudice them. Specifically, they suggest that they will have to file yet another m otion to dism iss. This prejudice is m inim al, however, because plaintiff already alleged a Title VII hostile work environm ent claim in her original com plaint, and the St. Bernard Defendants m oved to dism iss it. See Dussouy , 660 F.2d at 599 (finding no undue prejudice because the existing pleadings gave defendant “adequate notice” of the new allegations, which challenged “essentially the same [conduct] as that challenged in the initial pleadings”). Moreover, adding a hostile work environment claim would not significantly expand the scope of discovery in this case because, as discussed earlier, plaintiff’s retaliation claim relies on plaintiff’s reasonable belief that she was subject to a hostile work environm ent. Cf. id. (recognizing that defendant would be prejudiced if am endment necessitated additional discovery). The St. Bernard Defendants also argue that the am endm ent would be futile. An am endment is futile if it would be dism issed under a Rule 12(b)(6) m otion. Marucci Sports, L.L.C. v. N at’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 20 14). Plaintiff’s proposed amendment reasserting a Title 21 VII claim for hostile work environment against her form er em ployer, St. Bernard Parish, would not be futile; as explained earlier, plaintiff has alleged sufficient facts in her first amended com plaint to support at least a reasonable belief that she was subject to a hostile work environm ent. The additional factual allegations in her second amended com plaint provide further detail in support of plaintiff’s Title VII claims. For exam ple, plaintiff alleges that she timely filed her charge of discrim ination and retaliation with the EEOC, and that she reported Peralta’s harassment to Graves, her direct supervisor. 47 Plaintiff’s proposed am endm ents therefore are not futile. Thus, the Court grants plaintiff’s m otion for leave to file a second am ended com plaint. III. CON CLU SION For the foregoing reasons, the Court GRANTS defendants’ m otion to dism iss plaintiff’s claim s for intentional infliction of em otional distress, defam ation, false im prisonm ent, assault and battery, sexual assault and sexual battery, state law retaliation, and violations of 42 U.S.C. §§ 1983, 1985, and 1986. The Court also grants defendants’ m otion to dism iss plaintiff’s Title VII retaliation claim against St. Bernard Parish Council, Peralta, 47 R. Doc. 82-4 at 3 ¶ 8, 10 ¶ 48. 22 William s, McGoey, Graves, and McGinnis. These claim s are DISMISSED WITHOUT PREJ UDICE, and St. Bernard Parish Council, Peralta, Williams, McGoey, Graves, and McGinnis are dism issed from this lawsuit. The Court DENIES defendants’ m otion to dism iss plaintiff’s Title VII retaliation claim against St. Bernard Parish, and DENIES defendants’ m otions to strike plaintiff’s oppositions to the m otions to dism iss. Further, upon reconsideration of the Magistrate J udge’s decision, the Court GRANTS plaintiff’s m otion to am end her com plaint. 7th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 23
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