Fountain v. New Orleans City et al

Filing 19

ORDER AND REASONS granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim. FURTHER ORDERED that plaintiff's Title VII law claims are DISMISSED WITH PREJUDICE. FURTHER ORDERED that plaintiff may file an amended complaint specifically asserting any causes of action under "government employee Whistleblower Protections established by OSHA, federal law, The U.S. Department of Labor and Executive Orders establishing the same" by 6/14/2018. Signed by Judge Lance M Africk on 6/7/2018. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH FOUNTAIN

CIVIL ACTION

VERSUS

No. 18-145

NEW ORLEANS CITY ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion 1 filed by defendants to dismiss plaintiff’s Title
VII claims as time-barred.

Further, and on the assumption that the Title VII

claims are the only federal claims asserted by plaintiff, defendants request that the
Court decline to exercise supplemental jurisdiction over plaintiff’s state law claims.
Under Local Rule 7.5, “[e]ach party opposing a motion must file and serve a
memorandum in opposition to the motion with citations of authorities no later than
eight days before the noticed submission date.” Defendants’ motion is set to be
submitted on June 13, 2018. As of this date, plaintiff has not filed an opposition to
the motion, and because such opposition would now be untimely, the Court treats
the motion as unopposed.
It is well established that “Title VII claims must be filed within 90 days of a
plaintiff's receipt of the notice of right to sue or the action will be dismissed.” Stokes
v. Dolgencorp, Inc., 367 Fed. App’x 545, 547 (5th Cir. 2010) (per curiam). Plaintiff
admits in his complaint that his deadline to file this case was October 3, 2017. 2
However, he filed the present action on January 4, 2018.
1
2

R. Doc. No. 18.
R. Doc. No. 1, ¶ 16.
1

While plaintiff had

previously filed a case asserting his Title VII claims on September 28, 2017, the
Court dismissed that case without prejudice due to plaintiff’s failure to appear
before the Court on January 4, 2018 to show cause why he had failed to timely serve
defendants. 3
As he has not filed an opposition, plaintiff has obviously not argued that the
complaint that he filed in this case should relate back to the complaint that he filed
in the case previously dismissed without prejudice by the Court. 4

It also goes

without saying that plaintiff has offered no argument that the Court should employ
the tools in its equitable toolkit to allow him to proceed with his case. The Court
thus considers plaintiff to have waived these positions.
In light of the plaintiff’s admission in his complaint, the Court concludes that
plaintiff’s Title VII claims are untimely and warrant dismissal.
Defendants also request that the Court decline to exercise supplemental
jurisdiction over plaintiff’s state law claims, proceeding on the assumption that the
Title VII claims are plaintiff’s only federal claims. However, in addition to Title VII,
the

complaint

references

“government

employee

Whistleblower

Protections

established by OSHA, federal law, The U.S. Department of Labor and Executive

See Fountain v. New Orleans City, No. 17-9808, R. Doc. No. 7.
In any event, the Fifth Circuit has indicated that Rule 15(c) does not apply in the
multiple-case context. See Carter v. Texas Dep't of Health, 119 Fed. App'x 577, 581
(5th Cir. 2004) (“The district court properly held that the ‘original pleading’ may not
be a pleading filed in a different case. While this Court has not specifically
addressed whether Rule 15(c) provides for a complaint in one case to relate back to
a complaint in another case, other courts have answered the question in the
negative, holding that Rule 15(c) pertains only to pleadings within the same case.”)
(citing cases).
3
4

2

Orders establishing the same” as the basis for federal question jurisdiction. 5 Given
this language, it appears that plaintiff may have intended to plead non-Title VII
federal claims.
Yet even a cursory reading of the complaint makes plain that plaintiff’s
factual allegations are geared toward Title VII, casting doubt on whether plaintiff
in fact intended to plead other federal claims. Further, plaintiff does not identify
with sufficient detail the nature of these other federal claims, if any.
Before casting final judgment on this question, however, the Court will
provide plaintiff with an opportunity to amend his complaint to clarify any nonTitle VII federal claims that he wants to assert in this action. Should plaintiff not
do so by the deadline provided below, then the Court will treat the Title VII claims
as plaintiff’s only federal claims and it will dismiss plaintiff’s state law claims
without prejudice.
Accordingly,
IT IS ORDERED that defendants’ motion is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that plaintiff’s Title VII law claims are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that plaintiff may file an amended complaint
specifically

5

asserting

any

causes

of

action

R. Doc. No. 1, ¶¶ 4, 17.
3

under

“government

employee

Whistleblower Protections established by OSHA, federal law, The U.S. Department
of Labor and Executive Orders establishing the same” by June 14, 2018.

New Orleans, Louisiana, June 7, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

4