Colson v. Wal-Mart Stores, Inc.

Filing 23

ORDER granting 7 Wal-Mart's Motion to Dismiss. The Clerk is instructed to close this case. Any pending motions are denied as moot. Signed by Judge Robert N. Scola, Jr on 10/10/2019. See attached document for full details. (mc)

United States District Court
for the
Southern District of Florida
Tonya Colson, Plaintiff,

)
)
v.
) Civil Action No. 19-80986-Civ-Scola
)
Wal-Mart Stores, Inc., Defendant.
)
Order Granting Motion to Dismiss
This case is an offshoot of the underlying complaint addressed by the
United States Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338
(2011). In Dukes, the Supreme Court reversed the certification of a nationwide
class of female Wal-Mart employees claiming gender discrimination. The Plaintiff
here, Tonya Colson, after again seeking relief through a regional class action and
then as a member of a 33-plaintiff complaint, now seeks redress individually. In
her amended complaint (Am. Compl., ECF No. 3), Colson lodges two counts
under Title VII regarding her compensation and promotion opportunities: in
count one she alleges disparate treatment and in count two she alleges disparate
impact. Walmart contends Colson does not plead specific, individualized facts
showing that she, herself, was discriminated against, either through disparate
treatment or impact; and Colson fails to establish standing. After careful review,
the Court agrees that Colson fails to state a claim under Federal Rule of Civil
Procedure 12(b)(6) and thus grants Wal-Mart’s motion (ECF No. 7) and
dismisses Colson’s complaint.
1. Background1
Colson worked at Walmart from 1988 through 2003. (Am. Compl. at ¶
120.) During this time, she earned a bachelor’s degree in human resource
management and took master’s-degree-level coursework. (Id.) Colson worked her
way up, from “layaway clerk” to “Personnel Manager” at Walmart’s store number
1006. (Id. at ¶ 121.) When she attempted to advance further, however, seeking
“Management in Training/Assistant Manager” positions, she was only ever
offered hourly positions. (Id.) At the same time, Colson watched men who had
only been with Walmart for a few months get promoted over her even though she
had a twelve-year tenure. (Id. at ¶ 122.) Colson believes she was paid less than

The Court accepts the complaint’s factual allegations, as set forth below, as true for the
purposes of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc.,
116 F.3d 1364, 1369 (11th Cir. 1997).

1

other similar situated men during her employment within Walmart’s region 46.
(Id. at ¶ 123.)
Colson also provides an additional twenty-five pages of background
information regarding Walmart’s organizational structure, the roles various
salaried positions played in the organization regarding compensation and
promotion decisions, and a number of policies and practices that guided these
decisions. (E.g., id. at ¶¶ 37–70, 74–99.) She additionally relays a statistical
analysis that indicates that, at some point (she does not specify when), 87 to 92
percent of the stores in Walmart region 46—Colson’s region—“show disparate
pay that is lower for women as compared to similarly situated men.” (Id. at ¶ 71.)
Colson also sets forth facts showing that Walmart’s management team was
aware that, on average, female employees were paid less than men and many
female employees experienced other disparities. (Id. at ¶¶ 72, 107–119). And she
further maintains that female Walmart employees are less likely than their male
counterparts to receive promotions to management positions (id. at ¶ 83) and
must wait significantly longer for promotions despite having equal or better
qualifications (id. at ¶¶ 83–84). Colson also lists eleven incidents, occurring at
other stores in her region, where other women experienced gender-based
discrimination. (Id. at ¶¶ 100–01.)
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all the complaint’s allegations as true,
construing them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal
sufficiency of a complaint’s allegations, the Court is bound to apply the pleading
standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint “must . . .
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “Dismissal is therefore
permitted when on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.” Glover v. Liggett Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing
Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
3. Discussion
A. Colson fails to sufficiently allege that Walmart intentionally
discriminated against her with respect to her pay and promotion
opportunities.
Under Title VII of the Civil Rights Act, it is 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 . . . sex.”
42 U.S.C. § 2000e-2(a)(1). “[C]omplaints alleging discrimination . . . must meet
the ‘plausibility standard’ of Twombly and Iqbal.” Henderson v. JP Morgan Chase
Bank, N.A., 436 Fed. App’x 935, 937 (11th Cir. 2011). Thus, Colson’s complaint
must contain “sufficient factual matter” to support a reasonable inference that
Walmart engaged in intentional gender discrimination against her in relation to
her compensation and denial of promotions. Henderson, 436 Fed. App’x at 937.
There are any number of ways Colson can do this, including “alleging facts
showing that similarly-situated [male employees] were offered more favorable
[employment] terms,” id., or direct evidence of discrimination, Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). After careful review, the
Court agrees with Walmart and finds Colson has not set forth sufficient factual
allegations that would demonstrate, either directly or circumstantially, that she
personally suffered any adverse employment consequences based on intentional
gender discrimination.
Colson challenges this conclusion, relying on Swierkiewicz v. Sorema N.
A., 534 U.S. 506 (2002), and at the same time insisting she has met Twombly’s
plausibility standards by pleading “enough fact to raise a reasonable expectation
that discovery will reveal evidence” of the defendant’s liability. (Pl.’s Resp., ECF
No. 15, 10–11 (quoting Twombly, 550 U.S. at 556).) While the Court agrees that
Swierkiewicz supports Colson’s position that she need not set forth evidence
establishing a prima facie case under the McDonnell framework2 in order to
survive dismissal, the Court nonetheless disagrees that that case absolves her
from alleging actual facts that support her claim of gender discrimination. See
2 Under the McDonnell framework, “[a] plaintiff establishes a prima facie case of disparate
treatment by showing that she was a qualified member of a protected class and was subjected
to an adverse employment action in contrast with similarly situated employees outside the
protected class.” Wilson, 376 F.3d at 1087. If such comparators are unavailable, a plaintiff may
establish a prima facie case by “present[ing] a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decisionmaker.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quotations and citations omitted).

Pouyeh v. UAB Dept. of Ophthalmology, 625 Fed. App’x 495, 497 (11th Cir. 2015)
(holding that a complaint must contain factual allegations demonstrating, either
directly or circumstantially, that a defendant’s actions were discriminatory);
Henderson, 436 Fed. App’x at 938 (requiring a plaintiff to plead facts that “raise[]
a plausible inference that [the defendant] discriminated against [the plaintiff]”).
Ultimately, Colson’s allegations cannot carry her past dismissal.
For example, in support of her insistence that she has set forth sufficient
facts, Colson first points to her allegations that “she sought management level
opportunities but was only offered hourly positions while she saw men with less
tenure than her promoted over her.” (Pl.’s Resp. at 11 (citing Am. Compl. at ¶¶
120–22).) Indeed, in her complaint, Colson specifically says she “sought
opportunities to advance to Management in Training/Assistant Manager
position.” (Am. Compl. at ¶ 121.) But, nothing about this allegation depicts, or
even implies, any discriminatory intent. Nor does it even set forth facts, with
respect to her promotion claim, that Colson sought a specific promotion into an
open or available position or that she was even qualified for such a promotion.
Her further assertion that she was “denied promotional opportunities” for four
categories of various manager positions does not fill these gaps, especially since
she describes these positions, or their “position equivalent,” in only the vaguest
of terms. (Am. Compl. at ¶ 106.a.ii.) Lastly, her allegation that “men who had
only been with the company a few short months were promoted” while she was
not after having worked for Walmart for twelve years fails to supply facts showing
discriminatory intent. What qualifications or prior experience did those men
have? What positions were they seeking compared to the positions Colson was
seeking? How did their qualifications compare? Was Colson qualified for the
positions the men sought? Colson’s complaint answers none of these questions.
In short, nothing set forth in the complaint would enable the Court to reasonably
infer that Walmart’s decision not to promote Colson was due to discriminatory
animus. See Veale v. Florida Dept. of Health, 2:13-CV-77-FTM-38UAM, 2013 WL
5703577, at *5 (M.D. Fla. July 29, 2013) (requiring “allegations of specific facts
to explain how the disparate treatment occurred” in order to properly plead Title
VII discrimination).
Next, Colson’s allegations that she “believes she was paid less than other
other similarly situated men during her employment within Region 46” is also
insufficient. This allegation is nothing but a “[t]hreadbare recital[] of the elements
of a cause of action, supported by mere conclusory statements,” and therefore
“do[es] not suffice.” Watts v. Ford Motor Co., 519 Fed. App’x 584, 586 (11th Cir.
2013) (quoting Iqbal, 556 U.S. at 678). And while the Court agrees with Colson
that “[s]he is not required to lay out every single detail of her employment in her
Complaint” (Pl.’s Resp. at 11), she must nonetheless provide at least some

“nonconclusory descriptions of specific, discrete facts of the who, what, when,
and where variety” that plausibly show she is actually entitled to relief. Watts,
519 Fed. App’x at 587 (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013)). It is not enough, as Colson adamantly maintains, for her
to simply “identif[y] the store where she worked and the years she was employed
by Wal-Mart.” (Pl.’s Resp. at 11.) There is nothing in these facts that would
differentiate between an employee who experienced discrimination from one who
did not.
Nor can the allegations Colson sets forth within her disparate treatment
count, or elsewhere, save her, as she suggests. These allegations, too, all suffer
from their threadbare and conclusory nature as shown, by example, in the
following:


“Plaintiff herein has been denied equal pay for salaried positions or hourly
positions.” (Am. Compl. at ¶ 106.a.i.)



“Additionally, Plaintiff has been denied promotional opportunities for”
various generically identified managerial positions. (Id. at ¶ 106.a.ii.)



“Wal-Mart denied Plaintiff pay equal to that earned by similarly situated
men, on the basis of gender.” (Id. at ¶ 125.)



“Wal-Mart denied Plaintiff equal opportunities for promotion to positions
that she was qualified for and interested in, on the basis of gender.” (Id. at
¶ 126.)



“Wal-Mart’s conduct of engaging in discrimination against the Plaintiff . . .
by making compensation and promotion decisions on the basis of gender
violates Title VII.” (Id. at ¶ 127.)



“The Defendant has failed to comply with [its] statutory duty . . . to
eliminate discrimination from the work place.” (Id. at ¶ 128.)

Every single one of these allegations amounts to nothing more than legal
conclusions and formulaic recitations of the elements of Title VII discrimination
claims. “These allegations might have survived a motion to dismiss prior to
Twombly and Iqbal. But now they do not.” Ansley v. Florida, Dept. of Revenue,
409CV161-RH/WCS, 2009 WL 1973548, at *2 (N.D. Fla. July 8, 2009) (requiring
a “plaintiff in an employment-discrimination case [to] allege facts that are either
(1) sufficient to support a plausible inference of discrimination, or (2) sufficient
to show, or at least support an inference, that he can make out a prima facie
case under the familiar burden-shifting framework set forth in McDonnell”).
Furthermore, Colson’s allegations regarding “Wal-Mart’s policy of gender
discrimination in Region 46” and “its systematic disparate pay and promotional
issues during . . . Plaintiff’s employment” (Pl.’s Resp. at 11) cannot secure her
entitlement to relief. While “proof that an employer engaged in a pattern or

practice of discrimination may be of substantial help in demonstrating an
employer’s liability in the individual case[,] such proof cannot relieve the plaintiff
of the need to establish each element of his or her claim.” Chin v. Port Auth. of
New York & New Jersey, 685 F.3d 135, 149 (2d Cir. 2012). So, for example,
Colson’s allegation that, at some point, 85 to 90 percent of the stores in her
region showed pay disparities between women as compared to similarly situated
men is insufficient to show that she herself experienced pay discrimination—or
even pay disparity. (Am. Compl. at ¶ 71.) Again, although “[e]vidence of an
employer’s general practice of discrimination may be highly relevant to an
individual disparate treatment . . . claim,” it is nonetheless not a viable “method
of proof as an independent and distinct method of establishing liability.” Chin,
685 F.3d at 150.
Finally, Colson’s attempts to tie these allegations of a pattern and practice
of discrimination throughout the Walmart organization to the actual
discrimination she says she herself was individually subjected to also fail. In
each instance, Colson’s allegations are again conclusory and without any actual
factual basis of support, for example:
 “Women, including Plaintiff, have been assigned to stores that generate
lower profits, and a result were paid less than their male counterparts.”
(Am. Compl. at ¶ 69.)


“Here, Plaintiff was affected by that discriminatory pay system.” (Id. at ¶
72.)



“As a consequence [of various policies and practices], qualified women,
including the Plaintiff herein, in Plaintiff’s Region have been denied equal
access to promotions because of their gender.” (Id. at ¶ 79.)



“Walmart accomplished [its] discrimination by: engaging in a pattern or
practice of making pay and promotion decision[s] on the basis of gender
and specifically paying each Plaintiff less than her similarly situated male
peers and denying Plaintiff promotional opportunities.” (Id. at ¶ 106.a.)



Walmart discriminated by “acting with reckless indifference to the rights
of Plaintiff despite [sic] systemic gender discrimination in the equal pay
and promotion of its female employees.” (Id. at ¶ 106.d.)



“Plaintiff brings this claim individually but does so with the knowledge of
other Plaintiffs from the same Wal-Mart Region with similar experiences.”
(Id. at ¶ 119.)

Even under the most liberal construction, these legal conclusions, generalities,
and sweeping statements, without any actual supporting facts, do not
sufficiently state a claim for discrimination that is plausible on its face. At most,

Colson has succeeded in establishing only the “sheer possibility” that Walmart
has acted unlawfully. Iqbal, 556 U.S. at 678.
B. Colson fails to sufficiently allege claims for disparate impact
regarding either pay or promotion opportunities.
Title VII makes an employer liable for disparate impact if “a complaining
party demonstrates that a respondent uses a particular employment practice
that causes a disparate impact on the basis of . . . sex . . . and the respondent
fails to demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity.” 42 U.S.C. § 2000e–2(k)(1)(A)(i).
“[A] plaintiff can recover under the disparate impact theory by proving that some
employment practice that is facially neutral in its treatment of similarly situated
employees has a disproportionately adverse effect on those employees who are a
member of some protected class.” Mitchell v. Jefferson County Bd. of Educ., 936
F.2d 539, 546 (11th Cir. 1991).
Colson’s allegations here fail to state a claim for disparate impact with
respect to the pay and promotion of female versus male Walmart employees. To
begin with, much like her allegations of disparate treatment, Colson’s allegations
of disparate impact lack factual support. For instance, she charges that “Walmart’s compensation policies, including its failure to require managers to base
pay decisions for individual employees on job related criteria . . . , its policy of
setting pay adjustments based on the associates’ prior pay, and its 2004 pay
class restructuring have,” together, “had an adverse impact upon female
employees . . . including the Plaintiff.” (Id. at ¶ 73.) Not only does this allegation
fail to set forth specific supporting facts, it fails to identify the facially neutral
aspects of the policies that have resulted in the purportedly adverse impact.
Many of Colson’s other disparate-impact allegations are of the same ilk:


“[Q]ualified women” “have been denied equal access to promotion because
of their gender” as a result of Walmart’s failure “to specify the weight that
should be accorded any requirements for promotion, provide for detailed
objective criteria for the selection of employees for promotion, or monitor
the policies and practices used . . . for the selection of employees for
promotion.” (Id. at ¶ 79.)



“Wal-Mart’s promotion policies, including its failure to require managers
to base promotion decisions for individual employees on job related
criteria, have had a statistically significant adverse impact upon its female
employees . . . , including the Plaintiff.” (Id. at ¶ 94.)



Walmart’s policies (such as “its failure to require or use job related criteria
for making compensation decisions, its policy of setting pay adjustments
based on the associate’s prior pay,” “its 2004 pay class restructuring,” “its

failure to provide for an open application process or job posting; its
relocation and travel requirements for management positions, its
scheduling requirements . . . ; and its failure to apply job-related objective
criteria for making management selections”) all adversely impacted
Colson. (Id. at ¶ 140.)
These are all exactly the types of conclusory assertions that were held to be
insufficient in Iqbal.
Additionally, many of Colson’s allegations fail to connect the adverse
impact of a particular policy or procedure to any specific injury she herself has
suffered. For example, Colson explains that the “formulaic use of prior pay rates
to set starting Assistant Manager pay meant prior pay disparities adverse to
women would be perpetuated” and that “the use of exceptions . . . provided the
opportunity to create additional disparities adverse to women.” (Am. Compl. at ¶
66.) She also complains that “[p]erformance ratings . . . could incorporate bias
and unfairly rate women Assistant Managers lower than their peers.” (Id. at ¶
67.) Similarly, she says that because “merit increases were computed as a
percentage of the base pay rate,” “prior disparities in pay” were “perpetuat[ed]”
and “provided an opportunity for . . . decisionmakers to exercise bias in choosing
whom to favor.” (Id. at ¶ 68.) Colson further maintains that “promotional policies
and practices regarding management-track positions have denied interested and
qualified females equal access to promotional opportunities because promotion
opportunities are not posted, there is not an open application system, and
employees are not informed of the criteria for promotion.” (Id. at ¶ 79; see also,
¶¶ 80 (complaining of policies that “resulted in the exclusion of interested and
qualified women in Plaintiff’s region from the management training program”),
82 (pointing out that “Wal-mart has had a significantly lower percentage of
female managers than its largest competitors”), 83 (similar), 84 (similar), 145
(maintaining that “Wal-Mart’s discriminatory practices . . . have denied female
employees promotional opportunities and compensation to which they are
entitled, which has resulted in the loss of past and future wages and other job
benefits”). But none of these assertions is ever factually tied to adverse impacts
Colson says she herself endured. How did Colson’s own prior pay result in an
adverse decision regarding her own starting base pay? What pay “exceptions”
were applied such that she herself was negatively impacted? How did
“performance ratings” negatively impact her? What was it about the lack of a job
posting or an open application system that prevented her from having “equal
access to promotional opportunities”? How did policies relating to assistant
managers apply to her? Without supplying any causal links between the
complained of policies and her own injury, Colson cannot establish standing to
complain about the resulting disparate impact based on these allegations. See

Tartt v. Wilson County, Tennessee, 592 Fed. App’x 441, 447 (6th Cir. 2014) (“[A]
plaintiff making an individual disparate-impact claim for discrimination must
show that the challenged policy directly disadvantaged him in some
fashion.”) (quotation omitted).3
Furthermore, many of the policies Colson specifically identifies as having
an adverse impact, were not introduced until after Colson had worked at
Walmart. For example, Colson identifies “a new pay structure” that Walmart
implemented in 2004. (Am. Compl. at ¶ 60.) Colson alleges that this “2004 pay
restructuring had an adverse impact on female employees, including Plaintiff,
and was not justified by business necessity.” (Id.) She similarly points to policies
and procedures that Walmart adopted in 2005 and 2006 that both “had an
adverse impact on women, including Plaintiff.” (Id. at ¶¶61, 62.) These practices
cannot possibly have adversely impacted Colson when she says her employment
ended in 2003.
Finally, Colson lists a wide range of policies and practices which she
maintains have together combined to adversely impact the compensation and
promotion opportunities of women at Walmart. Ordinarily, a plaintiff must
“demonstrate that each particular challenged employment practice causes a
disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). However, when a plaintiff is
able to “demonstrate to the court that the elements of a respondent’s
decisionmaking process are not capable of separation for analysis, the
decisionmaking process may be analyzed as one employment practice.” Id. The
problem with Colson’s allegations here is that she fails to connect the dozens of
policies and procedures listed in her complaint with discernible, identifiable
adverse employment impacts. Instead, she simply generally describes a jumble
of disjointed policies and procedures—some affecting pay decisions; some
affecting promotion decisions; some in force while Colson was employed; some
not; some affecting management positions; and some affecting only hourly
positions—and then asserts that these policies “have had an adverse impact on
women,” “collectively and individually,” with respect to pay and “have all,
individually and collectively” adversely impacted female employees in
promotions. (Am. Compl. at ¶ 140.) She maintains that she can allege this jumble
of policies collectively because (1) “Wal-Mart has failed to create or maintain the
data that would allow analysis of the impact of each of these policies and
practices individually” and (2) Walmart does not “specify the weight that should
be accorded to each of its requirements for pay and promotion.” (Id. at ¶ 141;

The Court does not separately address Walmart’s standing arguments because it finds that,
aside from these allegations, other allegations in Colson’s complaint have sufficiently set forth
the elements of Article III standing.
3

see also id. at ¶ 94 (asserting that Walmart does not document the reasons for
promotions and Walmart “does not create or maintain records that identify the
impact of separate components of its promotion policies and practices”).)
But in order to proceed in this way, Colson must do more than just
complain about Walmart’s recordkeeping practices and instead she must allege
that the many steps or practices involved are “so intertwined that they were not
capable of separation for analysis” and actually “explain why the well-defined,
discrete elements of the [decisionmaking process] are ‘not capable of separation
for analysis.’” Davis v. Cintas Corp., 717 F.3d 476, 497 (6th Cir. 2013); see also
Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005) (“[I]t is not enough to
simply allege that there is a disparate impact on workers, or point to a
generalized policy that leads to such an impact. Rather, the employee is
responsible for isolating and identifying the specific employment practices that
are allegedly responsible for any observed statistical disparities.”) (quotation
omitted) (emphasis in original). Strikingly, Colson herself seems to acknowledge
that the practices are capable of separation when she says that the policies are
both collectively and individually responsible for the resulting adverse impacts.
(See Am. Compl. at ¶ 140.) Regardless, in the end, Colson’s allegations amount
to nothing more than a description of a number of employment practices that
she thinks generally favor men over women and her contention that, lumped
together, are correlated with various disparate impacts. But, “[i]t is simply not
enough to ‘point out that the hiring practices at issue are relatively less generous’
to some workers than to others.” Davis, 717 F.3d at 497 (quoting Smith, 544 U.S.
at 241 (internal quotation alterations in original omitted)). In sum, “a bare
assertion of . . . imbalances in the workforce is not enough to establish a Title
VII disparate impact claim.” Bennett v. Nucor Corp., 656 F.3d 802, 818 (8th Cir.
2011).
4. Conclusion
For the foregoing reasons, the Court finds Colson’s complaint and this
action are due to be dismissed for her failure to state a claim on either count
regarding both her pay and her promotion claims and therefore grants Walmart’s
motion (ECF No. 7). Because the Court finds the complaint due to be dismissed
for these reasons, it declines to address the other alleged insufficiencies Walmart
points to. Further, the Court dismisses Colson’s complaint without leave to
amend. Although Colson states in her response that she “has agreed to amend,”
this is not a proper method by which a party may seek leave to amend.
See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1222 (11th Cir. 1999) (“Where
a request for leave to file an amended complaint simply is imbedded within an
opposition memorandum, the issue has not been raised properly.”) Moreover, the

“additional details” Colson proffers will not salvage the deficiencies outlined
above nor is Colson even sure that she can properly rely on the new allegations
she seeks to add to her complaint. Because Colson—twice as a putative class
member, then as part of a group of plaintiffs, and now as an individual—has had
multiple opportunities to amend her complaint, the Court dismisses her
complaint with prejudice. See Wagner v. Daewoo Heavy Industries Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002) (“A district court is not required to grant a
plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
represented by counsel, never filed a motion to amend nor requested leave to
amend before the district court.”); Avena v. Imperial Salon & Spa, Inc., 17-14179,
2018 WL 3239707, at *3 (11th Cir. July 3, 2018) (“[W]e’ve rejected the idea that
a party can await a ruling on a motion to dismiss before filing a motion for leave
to amend.”); Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)
(“[D]ismissal for failure to state a claim under [Rule] 12(b)(6) is a ‘judgment on
the merits.’”); compare with Carter v. HSBC Mortg. Services, Inc., 622 Fed. App’x
783, 786 (11th Cir. 2015) (“A pro se plaintiff, however, must be given at least one
chance to amend the complaint before the district court dismisses the action
with prejudice, at least where a more carefully drafted complaint might state a
claim.”) (quotations omitted) (emphasis in original).
The Clerk is directed to close this case. Any pending motions are denied
as moot.
Done and ordered, at Miami, Florida, on October 10, 2019.
________________________________
Robert N. Scola, Jr.
United States District Judge