VASSEUR v. VALDOSTA STATE UNIVERSITY

Filing 8

ORDER denying as moot 3 Motion to Dismiss Complaint; granting 6 Motion to Amend/Correct. Plaintiff is hereby ORDERED to file an Amended Complaint within seven (7) days of the entry of this Order. Given that Defendants correctly noted that the improper Defendant was served in this action, Plaintiff is also hereby ORDERED to perfect service of process within fourteen (14) days of the filing of the Amended Complaint. Defendant shall thereafter be given tw enty-one (21) days to file an Answer or other appropriate motion. Finally, it is hereby ORDERED that Defendants Motion to Dismiss Plaintiffs Complaint pursuant to Fed. R. Civ. P 12(b)(5) and 12(b)(6) 3 is DENIED as MOOT without prejudice and that Plaintiffs Motion for Joinder of Parties 6 is DENIED as MOOT without Prejudice. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 1/19/2023. (ksl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
DR. JEFFREY THOMAS VASSEUR,
Plaintiff,
v.
VALDOSTA STATE UNIVERSITY.,
Defendant.
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CASE NO: 7:22-cv-97 (WLS)

ORDER
Presently before the Court is Plaintiff’s Motion for Leave to Amend and corresponding
request to Join a Party to this Action, which was improperly included in Plaintiff’s Response
to Defendant’s combined 12(b)(5) and 12(b)(6) Motion to Dismiss. (Doc. 3 & 6.) Therein,
Plaintiff requests this Court’s leave to amend the complaint and join the University System of
Georgia to this action. (Doc. 6.) Plaintiff also responds to Defendant’s combined 12(b)(5) and
12(b)(6) Motion to Dismiss. (Docs. 3 & 6.)
By way of background, Defendant moved to dismiss Plaintiff’s Complaint on
December 20, 2022 for three reasons: (1) Plaintiff did not sue the proper Defendant in this
lawsuit, but rather named Valdosta State University, an entity not capable of being sued, (2)
Plaintiff did not serve the Board of Regents of the University System of Georgia, the actual
Defendant in this case, and (3) Plaintiff’s Complaint is subject to dismissal for failure to
exhaust Plaintiff’s administrative remedies under Title VII. (Id.) Plaintiff filed an untimely
Response to Defendant’s Motion to Dismiss on January 11, 2023, which included the present
Motion to Amend and Motion for Joinder. (Doc. 6.) Therein, Plaintiff contends that dismissal
is improper as Plaintiff sued the correct Defendant, the University System of Georgia can be
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joined to this case, and Plaintiff’s case should be exempted from the administrative remedies
requirement of Title VII. (Id.) Plaintiff also moves for this Court’s leave to amend the
Complaint pursuant to Fed. R. Civ. P. 15(a) as well as for permission to join the University
System of Georgia to this action. (Doc. 6.)
For the reasons that follow, Plaintiff’s Motion for Leave to Amend (Doc. 6) is
GRANTED. Furthermore, it is hereby ORDERED that Plaintiff’s Motion for Joinder (Doc.
6) is DENIED as MOOT without prejudice. Defendant’s Motion to Dismiss for
Insufficient Service of Process and Failure to State a Claim (Doc. 3) are DENIED as MOOT
without prejudice.
RELEVANT PROCEDURAL HISTORY
Plaintiff, Dr. Jeffrey Vasseur, commenced this action by filing a Complaint with this
Court on September 18, 2022. (Doc. 1.) Plaintiff asserts a single claim for relief pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Doc. 1 at 9.)
Pursuant to Federal Rule of Civil Procedure 4(m) Plaintiff had ninety (90) days to
perfect service after the filing of the Complaint, or no later than Saturday, December 17, 2022.
As of December 20, 2022, Plaintiff had not shown that service of process on Defendant.
Accordingly, on December 20, 2022, this Court entered an Order for Plaintiff to show
cause why the Complaint should not be dismissed for failure to serve process. (Doc. 4.) Shortly
before that Order was entered Defendant, the Board of Regents of the University System of
Georgia, entered a notice of special appearance, filing a Motion to Dismiss Plaintiff’s
Complaint. (Doc. 3.) As stated supra, Defendant contended that Plaintiff’s Complaint should
be dismissed for three reasons.

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Plaintiff complied with this Court’s Order to show cause (Doc. 5), on November 30,
2022 showing that Plaintiff had served Henrietta Benjamin, the minors on-campus
coordinator for Valdosta State University. On January 11, 2023, Plaintiff filed a Response
(Doc. 6) to Defendant’s Motion to Dismiss. Defendants subsequently filed a Reply on January
17, 2023. (Doc. 7.) Accordingly, briefing has now concluded, and this issue is ripe for
disposition.
DISCUSSION
As stated supra, Defendant contends that Plaintiff’s Complaint should be dismissed for
three reasons: (1) Plaintiff did not sue the proper Defendant in this lawsuit, (2) Plaintiff did
not serve the Board of Regents of the University System of Georgia, and (3) Plaintiff’s
Complaint is subject to dismissal for failure to exhaust Plaintiff’s administrative remedies
under Title VII. (Doc. 3.) In Response, Plaintiff contends that they did sue the proper
Defendant in this lawsuit, that the Board of Regents of the University System of Georgia can
be joined to this action and that Plaintiff could not have exhausted the administrative remedies
of Title VII. (Doc. 6.) On the final page of Plaintiff’s Response, Plaintiff also moves this Court
for leave to amend and requests permission to join the University System of Georgia to this
action. (Doc. 6.)
In the United States Court of Appeals for the Eleventh Circuit “there is a strong policy
of determining cases on their merits.” Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d
1291, 1295 (11th Cir. 2003). Furthermore, a “district court’s discretion to dismiss a complaint
without leave to amend is severely restricted by Fed. R. Civ. P. 15(a)” when leave to amend is
requested. Bryant v. Dupree, 252 F.3d 1161, 1163, (11th Cir. 2001). “[U]nless there is a
substantial reason to deny leave to amend, the discretion of the district court is not broad
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enough to permit denial.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999). It
is for that reason that generally, “where a more carefully drafted complaint might state a claim,
a plaintiff must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991).
A district court need not give leave to amend, however, where “(1) there has been
undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments
previously allowed; (2) where allowing amendment would cause undue prejudice to the
opposing party; or (3) where amendment would be futile. See Forman v. Davis, 371 U.S. 178,
182 (1962). In the present case, Defendant does not contend that Plaintiff should not be
granted leave to amend due to either undue delay, bad faith, dilatory motive, or undue
prejudice, but rather that Plaintiff’s Motion for Leave to Amend should be denied as any
amendment would be futile – in light of Plaintiff’s admission that he had failed to exhaust
Title VII’s administrative prerequisites and statement that Plaintiff “did not receive
discrimination based on race or gender” (Doc. 6 at 4) – and Plaintiff did not properly request
leave to amend. 1 (Doc. 7.) Accordingly, this Court need only decide whether amending
Plaintiff’s Complaint would be futile as Defendant contends, and whether Plaintiff’s failure to
properly request leave to amend is fatal.
As an initial matter, amending Plaintiff’s Complaint may not be denied as futile as
Defendant contends as Plaintiff’s failure “to file a charge with the [[Equal Employment
Opportunity Commission] within the 180-day period does not serve as a jurisdictional bar to
the employee bringing an action in federal court.” Freeman v. CSX Transp. Co., 730 F. Supp.
1084, 1086 (M.D. AL 1989) (see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). This
The Court notes for the purposes of the record that Defendant does not appear to distinctly contest Plaintiff’s
request for Joinder in their Response. (Doc. 7.)

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is because the 180-day requirement, “like a statute of limitations, is subject to waiver, estoppel,
and equitable tolling.” Zipes, 455 U.S. at 393. Accordingly, it is conceivable, albeit not plausible,
that Plaintiff will be able to state an actionable claim under Title VII, if granted leave to amend,
even though Plaintiff admits that he “did not receive discrimination based on race or gender.”
(Doc. 6 at 4.)
Furthermore, failure to properly request leave to amend is not fatal to Plaintiff’s Motion
for Leave to Amend. (Doc. 6.) While Defendant is correct that the deadline to amend as a
matter of course pursuant to Fed. R. Civ. P. 15 has since passed, a party may still amend its
pleading with the court’s leave. Fed. R. Civ. P. 15(a)(2). While a motion for leave to amend
should be filed as a separate motion and “either set forth the substance of the proposed
amendment or attach a copy of the proposed amendment” failure to comply with these
requirements is not inherently fatal. Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999). Failure
to comply with those requirements is not fatal as it remains within the district court’s discretion
whether to grant leave to amend.
Accordingly, given that the Defendant in this action has not proffered a “substantial
reason” why Plaintiff’s Motion to Amend (Doc. 6) should be denied, and this Court cannot
determine whether “a more carefully drafted complaint might state a claim” this Court finds
that the interest of justice requires granting Plaintiff’s Motion to Amend. (Doc. 6.) Bank, 928
F.2d at 1112. Accordingly, Plaintiff’s Motion for Leave to Amend (Doc. 6) is GRANTED.
Plaintiff is hereby ORDERED to file an Amended Complaint within seven (7) days of the
entry of this Order. Given that Defendants correctly noted that the improper Defendant was
served in this action, Plaintiff is also hereby ORDERED to perfect service of process within

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fourteen (14) days of the filing of the Amended Complaint. Defendant shall thereafter be given
twenty-one (21) days to file an Answer or other appropriate motion.
Finally, it is hereby ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Complaint pursuant to Fed. R. Civ. P 12(b)(5) and 12(b)(6) (Doc. 3) is DENIED as MOOT
without prejudice and that Plaintiff’s Motion for Joinder of Parties (Doc 6) is DENIED as
MOOT without Prejudice.

SO ORDERED, this 19th day of January 2023.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

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