Looney v. Purely, Inc. et al

Filing 33

MEMORANDUM OPINION AND ORDER that defendants' motion to dismiss 9 is GRANTED under Rule 12(b)(6) and is therefore DENIED as moot to the extent the Court has partially treated the motion as one for summary judgement under Rule 56. Plaintiff� 39;s 1983 claims against all defendants and her Title VII claim against the individual defendants in their individual capacities are DISMISSED with prejudice under Rule 12(b)(6) without leave to amend as to those claims. The Title VII sexual harassme nt claims against Purely and the individual defendants in their "official capacities"are DISMISSED without prejudice under Rule 12(b)(6). Plaintiff is GRANTED leave to file an amended complaint by 3/7/18 that plausibly alleges Title VII sex ual harassment claims against Purely and/or the Individual Defendants. If no amended complaint filed, the dismissal of the sexual harassment claims shall be converted to a DISMISSAL with prejudice without further order of court. Signed by Magistrate Judge Katherine P. Nelson on 2/21/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KATHY J. LOONEY,
Plaintiff,

)
)
)
v.
)
)
SIMPLY AROMA LLC d/b/a Purely, )
et al.,
)
Defendants.
)

CIVIL ACTION NO. 1:17-00294-N

MEMORANDUM OPINION AND ORDER
This action is before the Court on the motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) (Doc. 9) filed by the Defendants.1 By previous order (Doc.
10), pursuant to Federal Rule of Civil Procedure 12(d), the parties were given notice
that the Court intended to treat part of the motion as a motion for summary
judgment under Federal Rule of Civil Procedure 56. The Plaintiff, Kathy J. Looney,
has timely filed a response (Doc. 17) in opposition to the motion, and the Defendants
have timely filed a reply (Doc. 18) to the response.

The motion is now under

submission (see Doc. 10) and is ripe for disposition. Upon consideration, the Court
finds that the Defendants’ motion (Doc. 9) is due to be GRANTED under Rule
12(b)(6). As such, to the extent the Court has partially treated the motion as one
for summary judgment under Rule 56, it is due to be DENIED as moot. However,
Looney will be given leave to file an amended complaint to address some of the

With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 14, 15).
1

deficiencies identified herein.
I.

Legal Standards

In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim
upon which relief can be granted,” the Court must construe the complaint in the
light most favorable to the plaintiff, “accepting all well-pleaded facts that are alleged
therein to be true.”

E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th

Cir. 2013). “Fed. R. Civ. P. 8(a)(2) requires that a pleading contain ‘a short and
plain statement of the claim showing that the pleader is entitled to relief’ in order to
give the defendant fair notice of what the claim is and the grounds upon which it
rests.”

Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)

(quotation omitted). “ ‘While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.’ ”

Id. at

1289 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
1964-65, 167 L. Ed. 2d 929 (2007)). A complaint’s “ ‘[f]actual 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).’ ”

Id. (quoting

Twombly, 550 U.S. at 555). “[T]o survive a motion to dismiss, a complaint must
now contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’ ”

Id. (quoting Twombly, 550 U.S. at 570). While this

“plausibility standard is not akin to a ‘probability requirement’ at the pleading stage,

… the standard ‘calls for enough fact to raise a reasonable expectation that discovery
will reveal evidence’ of the claim.”

Id. (quoting Twombly, 550 U.S. at 556).

Moreover, “ ‘the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.’ ” Id. at 1290 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under the plausibility standard, “
‘where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that
the pleader is entitled to relief.” ’ ” Id. (quoting Iqbal, 556 U.S. at 679 (quoting Fed.
R. Civ. P. 8(a)(2))). Iqbal “suggested that courts considering motions to dismiss
adopt a ‘two-pronged approach’ in applying these principles: 1) eliminate any
allegations in the complaint that are merely legal conclusions; and 2) where there
are well-pleaded factual allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556
U.S. at 679). “[C]ourts may infer from the factual allegations in the complaint
‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the
unlawful conduct the plaintiff would ask the court to infer.”

Id. (quoting

Iqbal,

556 U.S. at 679 (quoting Twombly, 550 U.S. at 567)).
II.

Factual Determinations

The complaint (Doc. 1) contains the following well-pleaded allegations, which
the Court accepts as true for purposes of the present motion:

Beginning in March

2015, Looney was employed by Defendant Simply Aroma LLC d/b/a Purely (“Purely”)
as an administrative assistant and customer service representative. (Doc. 1 at 2, ¶

10).

Defendant Thai LNU,2 a Purely warehouse technician, would rub his penis

against Looney’s buttocks, grab her waist when he walked by her, and commit other
unwelcomed advances and touching. (Id., ¶¶ 9, 11). On September 2, 2016, while
at an office get-together, Thai LNU grabbed Looney’s buttocks with both hand and
pulled her to his body. (Id. at 3, ¶ 12). Immediately, Looney pushed him away and
said “No!” very loudly; Thai LNU raised his hands, snickered, and said “Sorry.”
(Id.). On September 6, 2016, Looney reported the harassment to Defendant Kelly
Love, Purely’s acting Vice President. (Id. at 2 – 3, ¶¶ 8, 13). On September 9,
2016, Defendant Andrew Khong, Purely’s owner, yelled at Looney and told her to
leave, in response to her complaints about the harassment. (Id., ¶¶ 7, 14).
Based on the foregoing allegations, Looney alleges causes of action for sexual
harassment in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §
1983.
III.
A.

Analysis

Title VII Claims against the Individual Defendants

Defendants Andrew Khong, Kelly Love, and Thai LNU (collectively, “the
Individual Defendants”) argue that Looney’s Title VII claims against them are due to
be dismissed because Title VII is “inapplicable to individuals.” (Doc. 9 at 2).
“Individual capacity suits under Title VII are…inappropriate. The relief
granted under Title VII is against the employer, not individual employees whose

The undersigned assumes that LNU stands for “last name unknown.”
Defendants’ motion indicates that this defendant’s full name is “Thai Pham.”
Doc. 9 at 2).
2

The
(See

actions would constitute a violation of the Act.” Busby v. City of Orlando, 931 F.2d
764, 772 (11th Cir. 1991) (per curiam). “The only proper individual defendants in a
Title VII action would be supervisory employees in their capacity as agents of the
employer.” Hinson v. Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.
2000) (citing Busby, 931 F.2d at 772). Accordingly, the Rule 12(b)(6) motion to
dismiss is due to be GRANTED as to the individual-capacity Title VII claims against
the Individual Defendants.
Looney has also sued each of the Individual Defendants in his or her “official
capacity.” (See Doc. 1 at 1 – 2, Style & ¶¶ 7 – 8). It is doubtful that Thai LNU can
be sued in his “official capacity” under Title VII, as the complaint does not indicate
that he was a Purely “supervisory employee.” Regardless, as will be explained in
the following section, Looney’s Title VII sexual harassment claim against Purely is
due to be dismissed for failure to plausibly plead an essential element of the claim.
Thus, the Title VII claims against the Individual Defendants in their “official
capacities” as agents of Purely are due to be dismissed for the same reason.
B.

Title VII Claim against Purely

Title VII of the Civil Rights Act of 1964 makes it unlawful for an
employer “to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e–2(a)(1). Although Title VII itself does not mention
sexual harassment, it has long been settled that the statutory phrase
“terms, conditions, or privileges of employment” includes within its
scope a discriminatorily hostile or abusive environment. Mendoza v.
Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc).

To prove sexual harassment under Title VII, a plaintiff must show (1)
that she belongs to a protected group; (2) that she has been subjected to
unwelcome sexual harassment; (3) that the harassment was based on
her sex; (4) that the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) that a basis for
holding the employer liable exists. Id. at 1245; Johnson v. Booker T.
Washington Broad. Serv., 234 F.3d 501, 508 n. 7 (11th Cir. 2000).
Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004).
Purely argues that Looney’s complaint does not allege facts showing the
harassment she endured was “sufficiently severe or pervasive” to plausibly state a
Title VII sexual harassment claim. This element “contains both an objective and a
subjective component. Thus, to be actionable, this behavior must result in both an
environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives to be abusive.”

Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (citation and
quotation omitted). Purely challenges only the objective component.
“In evaluating the objective severity of the harassment, [courts in this Circuit]
consider, among other factors: (1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee's job performance.” Id. (citing Allen v. Tyson Foods, 121 F.3d 642, 647
(11th Cir. 1997)). “The courts should examine the conduct in context, not as isolated
acts, and determine under the totality of the circumstances whether the harassing
conduct is sufficiently severe or pervasive to alter the terms or conditions of the

plaintiff's employment and create a hostile or abusive working environment.”
Mendoza, 195 F.3d at 1246. See also Hulsey, 367 F.3d at 1248 (“In considering these
factors, we employ a totality of the circumstances approach, instead of requiring
proof of each factor individually.”)
The undersigned agrees that Looney has not alleged sufficient factual matter,
accepted as true, to plausibly show that the harassment she endured while a Purely
employee was objectively severe or pervasive enough to sustain a Title VII sexual
harassment claim. Certainly, Thai LNU’s alleged conduct – “rub[bing] his penis
against her buttocks, grab[ing] her waist when he walked by her and committ[ing]
other unwelcomed advances and touching upon” her (Doc. 1 at 2, ¶ 11) – can be
deemed “physically threatening or humiliating.” Cf. Olson v. Lowe's Home Centers
Inc., 130 F. App'x 380, 388 (11th Cir. 2005) (unpublished). (“Senkle's conduct…was
physically threatening and humiliating. Senkle rubbed his entire body (not merely a
hand or hip) against Olson on two occasions.”).

However, this factor does not

compensate for Looney’s weak or nonexistent showing on the other three factors.
Cf. Mendoza, 195 F.3d at 1248 (“Three of the four factors—physically threatening or
humiliating conduct, interference with job performance, and severity—are clearly
absent from the conduct established by Mendoza. The other factor—frequency of the
harassing conduct—is also for the most part lacking, but to the extent Mendoza
showed frequent conduct, the frequency of it does not compensate for the absence of
the other factors.”).

First, she fails offer sufficient factual detail that would allow the Court to
reasonably infer the frequency in which Thai LNU’s actions occurred over the course
of her employment with Purely.

The only incident that Looney recounts with

relative specificity occurred at an office get-together on September 2, 2016, by which
time Looney had been a Purely employee for approximately one-and-a-half years.
(Id. at 3, ¶ 12).

The Court’s ability to infer the frequency of Thai LNU’s

inappropriate actions is further hampered because Looney does not allege what
length of time her employment with Purely overlapped with his. The Eleventh
Circuit has generally been more willing to find “severe or pervasive” sexual
harassment when the objectionable conduct occurred often over a short period of
time, as opposed to isolated incidents spread out over longer periods. Compare
Hulsey, 367 F.3d at 1248 (“Garrison's conduct was frequent, occurring at least 18
times during the approximately 2 to 2–1/2 weeks between his initial attempt to get
Hulsey to date him and her termination on August 16, 2001…Garrison's conduct is at
least as severe and pervasive as the defendant's conduct in the Johnson case, which
we found bad enough to satisfy the objectively severe and pervasive standard.
Johnson[ v. Booker T. Washington Broad. Serv., Inc.], 234 F.3d [501,] 506, 509[ (11th
Cir. 2000)]. In that case there were 15 incidents of unwelcome and inappropriate
conduct incidents over the course of four months, including sexually charged
comments and gestures, ‘giving [the plaintiff] unwanted massages, standing so close
to [her] that his body parts touched her from behind, and pulling his pants tight to
reveal the imprint of his private parts.’ Id.”), and Dees v. Johnson Controls World

Servs., Inc., 168 F.3d 417, 418-19 (11th Cir. 1999) (“According to Dees, during her
three years at the Fire Department she was subjected to a continuous barrage of
sexual harassment by Rainey and Jacobs, as well as Fire Captain Danny Stewart
and Assistant Chief Alfred Amerson. This almost-daily abuse took a variety of
forms, from sexually explicit stories and jokes, to comments about her body or those
of male firefighters, to physical harassment.” (emphasis added) (footnote omitted)),
with Johnson, 234 F.3d at 509 (“This set of facts differs from cases like Mendoza and
Gupta v. Florida Bd. of Regents, where there were fewer instances of less
objectionable conduct over longer periods of time. See Mendoza 195 F.3d at 1242–43;
Gupta v. Florida Bd. of Regents, 212 F.3d 571, 585 (11th Cir. 2000).”). Considering
the allegations in the complaint, the Court can only speculate as to the frequency of
the harassing conduct.
Moreover, the acts Looney complains of are not the sort of conduct that the
Eleventh Circuit has generally found to be so severe as to constitute “severe or
pervasive” harassment without some showing that they occurred with relative
frequency.

Compare Hulsey, 367 F.3d at 1248 (“frequent” and “sever” conduct

included supervisor’s “repeated attempts to touch [plaintiff’s] breasts, place his
hands down her pants, and pull off her pants[,]” as well as “enlisting the assistance of
others to hold her while he attempted to grope her”), and Olson, 130 F. App'x at 388
(11th Cir. 2005) (unpublished) (“Like Johnson, this case involves frequent instances
of sexual harassment over a short period of time, and unwanted physical touching.
Indeed, the sexual comments grew in frequency to every shift; there were three

incidents of physical contact; and Olson was actually physically injured by Senkle’s
behavior.”), with Dar Dar v. Associated Outdoor Club, Inc., 248 F. App'x 82, 85 (11th
Cir. 2007) (per curiam) (unpublished) (“two sexually inappropriate comments and
two incidents of intentional buttocks touching over the course of 22 months” did not
establish hostile work environment), and Mitchell v. Pope, 189 F. App'x 911, 913–14
(11th Cir. 2006) (per curiam) (unpublished) (“Overbey’s conduct was not that
frequent. Plaintiff began working in the Criminal Investigation Division, under
Overbey's supervision, in January 1998: she resigned in July 2002. During those 4
years, Plaintiff points to 16 specific instances of offensive conduct by Overbey. Of
these instances, most involved ‘offensive utterances.’ Only three times did Overbey
touch her or attempt to touch her: when he tried to kiss her, when he lifted her over
his head, and when he rubbed up against her and reached across her
chest…Although Overbey's reprehensible behavior only can be described as crass
and juvenile, we accept that this behavior—given its relative infrequency—is not the
kind of ‘severe’ harassment necessary for liability to attach under Title VII.” (footnote
omitted)).

See also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(“isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment” (quotation omitted)). Finally,
Looney has failed to offer any specific factual allegations demonstrating how Thai
LNU’s conduct interfered with her job performance, unreasonably or otherwise. Her
allegation that his conduct “materially affected the terms and conditions of [her]
employment” is a legal conclusion that the Court need not accept as true.

Even construing them in the light most favorable to Looney, the complaint’s
well-pleaded allegations do not, under the totality of the circumstances, plausibly
suggest conduct that is objectively “severe or pervasive” to support a Title VII sexual
harassment claim. Accordingly, on this basis, the Rule 12(b)(6) motion to dismiss is
due to be GRANTED as to the Title VII sexual harassment claims against Purely
and the Individual Defendants in their “official capacity.”
C.

Section 1983 Claims

The Defendants’ motion does not address Looney’s § 1983 claims.
Nevertheless, as explained above, Looney’s Title VII claims are due to be dismissed
for failure to plausibly plead an essential element of those claims. Thus, Looney’s §
1983 claims are subject to dismissal for this same reason. See Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008) (“Title VII and section 1983
claims have the same elements where the claims are based on the same set of facts.”
(citing Abel v. Dubberly, 210 F.3d 1334, 1338 n.3 (11th Cir. 2000) (per curiam)).3
Moreover, it appears § 1983 provides no relief against any of the Defendants
because there is no plausible indication that they are “state actors.”

See, e.g.,

Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Section 1983 provides a cause of action
against any person who deprives an individual of federally guaranteed rights ‘under
color’ of state law. 42 U.S.C. § 1983. Anyone whose conduct is ‘fairly attributable to
To the extent Looney intended to plead claims under 42 U.S.C. § 1981, rather than
§ 1983, this same reasoning applies. See Bryant v. Jones, 575 F.3d 1281, 1296 n.20
(11th Cir. 2009) (“[D]iscrimination claims, including hostile work environment
claims, brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, are subject to the same standards
of proof and employ the same analytical framework.”).
3

the state’ can be sued as a state actor under § 1983. See Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937, 102 S. Ct. 2744, 73 L.Ed.2d 482 (1982).”).
Accordingly, Looney’s § 1983 claims are also due to be DISMISSED under
Rule 12(b)(6).4
D.

Permitting Amendment of the Complaint

Looney has never attempted to amend her complaint to supplement its
allegations, and despite being given almost two months to respond to the present
motion (see Doc. 13), Looney’s response and supporting affidavit essentially repeat
the same deficient allegations of harassment by Thai LNU that are found in the
complaint, without any additional material facts. (See Doc. 17 at 4, ¶¶ 9 – 12; Doc.
17-1 at 2, ¶¶ 9 – 12). Looney’s “narrative statement of facts” submitted with the
parties’ joint report of their planning meeting also fails to provide any additional
material facts. (See Doc. 21 at 1, ¶ 1(a)).
While the Court’s briefing order made clear that it was only treating one
ground of the motion to dismiss – whether Purely maintained the requisite number
of employees to be subject to Title VII liability – as a Rule 56 motion for summary
judgment, (see Doc. 10 at 1 – 2 (“In support of Ground 1, the Defendants have
submitted an affidavit by non-party Tuong Pham testifying to the number of
employees Purely, Inc. maintains…[T]he parties are hereby given notice that the
Court intends to treat Ground 1 of the motion to dismiss as a motion for summary
judgment under Federal Rule of Civil Procedure 56…”), Looney’s response is under
In light of the foregoing reasoning, the Court need not, and does not, address any of
the other grounds for dismissal raised in the Defendants’ motion.
4

the mistaken impression that the Court converted the entire Rule 12(b)(6) motion
into one for summary judgment and, pursuant to Rule 56(d)(2), requests that the
Court “defer ruling on Summary Judgment until such time as the parties complete
the formal discovery process.”

(Doc. 17 at 1). Because the Court did not convert

the Rule 12(b)(6) grounds for dismissal relied on above into motions for summary
judgment, Rule 56(d)(2) is inapplicable as to those grounds.

When a plaintiff’s

complaint, as here, “is deficient under Rule 8, [s]he is not entitled to discovery…”
Iqbal, 556 U.S. at 686. See also Chudasama v. Mazda Motor Corp., 123 F.3d 1353,
1367 (11th Cir. 1997) (“Facial challenges to the legal sufficiency of a claim or
defense, such as a motion to dismiss based on failure to state a claim for relief,
should…be resolved before discovery begins. Such a dispute always presents a
purely legal question; there are no issues of fact because the allegations contained in
the pleading are presumed to be true. See Mitchell v. Duval County Sch. Bd., 107
F.3d 837, 838 n.1 (11th Cir. 1997) (per curiam). Therefore, neither the parties nor
the court have any need for discovery before the court rules on the motion. See
Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981) (‘Discovery should follow the
filing of a well-pleaded complaint. It is not a device to enable a plaintiff to make a
case when his complaint has failed to state a claim.’).” (footnote omitted)).
A district court “is not required to grant a plaintiff leave to amend his
complaint sua sponte [prior to dismissing it with prejudice] when the plaintiff, who
is represented by counsel, never filed a motion to amend nor requested leave to
amend…”

Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.

2002) (en banc). Nevertheless, a court may sua sponte grant a counseled plaintiff
leave to amend “[w]here a more carefully drafted complaint might state a claim…”
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam), overruled in part by
Wagner, 314 F.3d 541. However, “if a more carefully drafted complaint could not
state a claim…, dismissal with prejudice is proper.”

Id.

Upon consideration, the undersigned finds that a more carefully drafted
complaint could not plausibly state a Title VII claim against any of the Individual
Defendants in their individual capacities, in light of clear circuit precedent that
“[i]ndividual capacity suits under Title VII are…inappropriate.” Busby, 931 F.2d at
772. The undersigned also finds that a more carefully drafted complaint could not
plausibly state a § 1983 claim against any of the Defendants because there is
absolutely no indication any of the Defendants would be considered “state actors”
subject to liability under that statute.

Accordingly, those claims are due to be

DISMISSED with prejudice under Rule 12(b)(6), without leave to amend.
However, because the undersigned finds that a more carefully drafted complaint
could plausibly state Title VII sexual harassment claims against Purely and the
Individual Defendants in their “official capacities,” those claims are due to be
DISMISSED under Rule 12(b)(6), but subject to Looney being granted leave to file
an amended complaint that plausibly alleges such claims.
IV.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Defendants’ motion to dismiss (Doc. 9) is GRANTED under Rule 12(b)(6), and is

therefore DENIED as moot to the extent the Court has partially treated the motion
as one for summary judgment under Rule 56. Looney’s § 1983 claims against all
Defendants and her Title VII claim against the Individual Defendants in their
individual capacities are DISMISSED with prejudice under Rule 12(b)(6), without
leave to amend as to those claims. Her Title VII sexual harassment claims against
Purely and the Individual Defendants in their “official capacities” are DISMISSED
without prejudice under Rule 12(b)(6). Looney is hereby granted leave to file an
amended complaint that plausibly alleges Title VII sexual harassment claims
against Purely and/or the Individual Defendants in their “official capacities.”

Said

amended complaint must be filed and served no later than Wednesday, March 7,
2018.

In filing the amended complaint, Looney must abide by the following

directives:
•   The amended complaint must reproduce the entire original complaint as
amended, see S.D. Ala. CivLR 15(a) (“Any amendment to a pleading … must
reproduce the entire pleading as amended and may not incorporate any prior
pleading by reference.”), and will become the operative complaint in this
action.5

“As a general matter, ‘[a]n amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’ ” Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (quoting Dresdner Bank
AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006) (citation and quotation omitted)). See also, e.g., Fritz v.
Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982)
(“Under the Federal Rules, an amended complaint supersedes the original
complaint.”).
5

•   The amended complaint must be filed as a freestanding pleading and not as
an exhibit attached to a notice, motion, etc.
Any filing made in contravention of those directives will be deemed
nonresponsive to this order and will be summarily ordered stricken.

If no amended

complaint is timely filed in accordance with this order, then the dismissal of Looney’s
Title VII sexual harassment claims against Purely and the Individual Defendants in
their “official capacities” under Rule 12(b)(6) shall be converted to a DISMISSAL
with prejudice without further order of the Court, and final judgment shall issue
separately forthwith in accordance with Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 21st day of February 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE