McIntyre v. Theodore

Filing 11

ORDER granting 8 Motion to Dismiss for Failure to State a Claim. Party Jennifer Theodore dismissed. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
McINTYRE

CIVIL ACTION

VERSUS

NO. 15-0544

THEODORE

SECTION: “G”(1)

ORDER
Before the Court is Defendant Jennifer Theodore’s “Motion to Dismiss for Failure to State
a Claim or, Alternatively, Motion for Summary Judgment,”1 wherein Theodore requests that this
Court dismiss Plaintiff Ronald McIntyre’s complaint because the claims therein have prescribed.
Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition to a
motion be filed eight days prior to the date set for hearing on the motion. No memorandum in
opposition to the pending motion, which was set for hearing on May 13, 2015, was submitted, timely
or otherwise. Accordingly, this motion is deemed unopposed. District courts may grant an
unopposed motion as long as the motion has merit.2
McIntyre, proceeding pro se, alleges that Theodore made false allegations of sexual
harassment against him.3 In his complaint, which was filed on February 13, 2015, McIntyre states
that:
On or about January 27 and 29, 2014 respectively the plaintiff received letters
forwarded him by David Gilmore entitled “Letter of Termination” and “Supplement
to January 16, 2014 Termination Letter” on the letterhead of the Housing Authority
of New Orleans stating that the plaintiff was being terminated for inappropriate
1

Rec. Doc. 8.

2

See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).

3

Rec. Doc. 1.

1

action with a female employee. Additionally, on February 8th, 2014 the
Administrative Receiver David Gilmore told the plaintiff that he had continually
sexually harassed Jennifer Theodore and she taped you.4
McIntyre additionally states that “Ms. Theodore’s actions/comments assisted the Administrative
Receiver David Gilmore in conspiring to terminate the plaintiff’s employment at the Housing
Authority of New Orleans.”5 According to the complaint, “the actions of the Defendant constitute
the torts of defamation, libel, slander and/or false light invasion of privacy.”6 Accordingly, it appears
that McIntyre alleges causes of action against Theodore for defamation, false light invasion of
privacy, and conspiracy.
Theodore argues, correctly, that McIntyre’s claims are prescribed.7 Defamation and false
light invasion of privacy are torts under Louisiana law, and tort claims are subject to a one-year
prescriptive period.8 The prescriptive period generally begins to run from the date on which the
injury or damage is sustained, even if the plaintiff only later realize the full extent of his damages.
For defamation claims, the one-year prescriptive period commences when the plaintiff gains
knowledge of the damage-causing publication by the defendant.9 Under Louisiana law, the party
asserting prescription bears the burden of proof, unless it is evident from the face of the pleadings

4

Id. at ¶ 5.

5

Id. at ¶ 9.

6

Id. at ¶ 18.

7

Rec. Doc. 8-1 at p. 5.

8

La. Civ. Code art. 3492; see Clark v. Wilcox, 928 So.2d 104, 111 (La. App. 1 Cir. 12/22/05) (citing Wiggins
v. Creary, 475 So.2d 780, 781 (La. App. 1 Cir.1985), writ denied, 478 So.2d 910 (La.1985) (“Claims for defamation are
delictual in nature and are subject to LSA–C.C. art. 3492’s one-year prescriptive period, which commences to run from
the day injury or damage is sustained.”)).
9

Clark, 928 So.2d at 112.

2

that a claim is prescribed.10
Here, McIntyre alleges in his complaint that he received a letter on or after January 27, 2014
notifying him that Theodore made a sexual harassment claim against him. Thus, prescription accrued
on any potential defamation or false light invasion of privacy claim one year later, on January 27,
2015. However, McIntyre filed the complaint in this matter on February 13, 2015.11 Accordingly,
it is evident from the face of the complaint that McIntyre’s defamation and false light invasion of
privacy claims against Theodore are prescribed.
To the extent that McIntyre also brings a conspiracy claim against Theodore, that claim must
also be dismissed as prescribed. The Louisiana Supreme Court has held that conspiracy by itself is
not an actionable claim under Louisiana law.12 The actionable element of a conspiracy claim is the
tort that the conspirators agree to perpetrate and actually commit in whole or in part.13 Because
McIntyre’s claims for defamation and false light invasion of privacy are subject to a one-year
prescriptive period, his claim for conspiracy is likewise subject to a one-year prescriptive period and
must be dismissed.14
“District courts should not dismiss pro se complaints pursuant to Rule 12(b)(6) without first
providing the plaintiff an opportunity to amend, unless it is obvious from the record that the plaintiff
has pled his best case.”15 Although “the definition of a plaintiff’s ‘best case’ has been deemed

10

King v. Phelps Dunbar, L.L.P., 743 So.2d 181, 188 (La.6/4/99).

11

Rec. Doc. 1.

12

Ames v. Ohle, 97 So.3d 386, 394 (La. App. 4 Cir. 5/23/12, 12).

13

Id. (citations omitted).

14

Id. (citation omitted).

15

Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (citations omitted).

3

‘elusive,’” in determining whether a pro se plaintiff has pled his best case, courts generally review
the record to determine whether the plaintiff could state a claim by amending his or her complaint.16
If a pro se plaintiff gives no indication of what material facts he would include in an amended
complaint, the district court may exercise its discretion to deny the plaintiff leave to amend.17 As
stated above, McIntyre has failed to oppose the pending motion. Accordingly, based on the record
and the complaint, McIntyre has failed to indicate what material facts he would include in an
amended complaint. Moreover, since his claims against Theodore have prescribed, the Court finds
that amendment would be futile. Because the Court finds that McIntyre has pled his best case
against Theodore, the Court will not grant him an opportunity to amend his complaint.
Accordingly,
IT IS HEREBY ORDERED that Defendant Jennifer Theodore’s “Motion to Dismiss for
Failure to State a Claim or, Alternatively, Motion for Summary Judgment”18 is GRANTED.
IT IS FURTHER ORDERED that Plaintiff

Ronald McIntyre’s complaint against

Defendant Jennifer Theodore is DISMISSED.
NEW ORLEANS, LOUISIANA, this ________ day of May, 2015.
13th

_________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

16

See Amanduron v. American Airlines, 416 Fed. Appx. 421, 423 (5th Cir. 2011).

17

See Kastner v. Lawrence, 390 Fed. Appx. 311, 317 (5th Cir. 2010).

18

Rec. Doc. 8.

4