Harrison v. Vici Properties, Inc. et al

Filing 21

ORDER AND REASONS granting 9 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, the Court GRANTS defendants' 9 motion to dismiss, and dismisses plaintiff's complaint WITHOUT PREJUDICE. The Court GRANTS plaintiff leave to file an amended complaint within twenty-one days of this Order. Signed by Judge Sarah S. Vance on 5/10/2022. (mm)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEJA DASHANTE HARRISON
VERSUS

CIVIL ACTION
NO. 21-2310

VICI PROPERTIES, INC. ET AL.

SECTION “R” (4)

ORDER AND REASONS
Before the Court is defendants Vici Properties, Inc. (“Vici”) and
Caesars Entertainment, Inc.’s (“Caesars”) motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). 1 Plaintiff Deja
Dashante Harrison opposes the motion. 2 For the following reasons, the
Court grants defendants’ motion. The Court also grants plaintiff leave to
amend her complaint to cure the deficiencies.

I.

BACKGROUND
This case arises from the denial of entry into a hotel casino. On October

4, 2021, plaintiff Deja Dashante Harrison, her brother, and her friend
checked into Harrah’s hotel in New Orleans.3 At 5:00 a.m. the next morning,

1
2
3

R. Doc. 9.
R. Doc. 17.
R. Doc. 1-2 ¶ 18.

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the group visited the hotel’s casino.4 Before entering the casino gaming area,
a Harrah’s host asked to see plaintiff’s identification. 5 After Harrison gave
the host her Louisiana driver’s license and the host attempted to run the
license through the ID scanner, the host told plaintiff that her license “did
not scan,” and that he had to call his manager to “verify her identification.”6
While waiting for the manager, plaintiff gave the host her vaccination card.7
When the manager, “Corey Doe,” arrived, he attempted to rescan
plaintiff’s driver’s license, but the license again did not scan properly. 8 At
this point, plaintiff gave Corey her military identification card. 9 Plaintiff
asserts that, when Corey looked at her military ID, he “rudely, and
condescendingly” told plaintiff that her ID was “fake,” that it was not her
card, and that “there [was] no way [she] made E-6 that quick.”10 “E-6” refers
the rank listed on plaintiff’s military ID. Corey thus refused to accept her
military ID as a valid form of identification for admission into the casino, and
allegedly “refused to even attempt to scan the [military] ID.”11 Plaintiff

4
5
6
7
8
9
10
11

Id. ¶ 19.
Id. ¶ 20.
Id. ¶ 21.
Id. ¶ 22.
Id. ¶ 23.
Id. ¶¶ 23-24.
Id. ¶ 24.
Id. ¶ 25.
2

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represents that she then “politely informed” Corey that she had recently been
commissioned to a higher rank of second lieutenant. 12 In response, Corey
allegedly continued to question the authenticity of plaintiff’s ID. 13
Plaintiff asserts that, despite her “continuing [efforts] to verify both her
driver’s license and military ID,” Corey refused to allow her to enter the
casino, and “rudely and dismissively announced he was calling NOPD (New
Orleans Police Department).” 14 Plaintiff states that, after Corey represented
that he called the police, she again told him that both her driver’s license and
military ID were authentic, at which point Corey asserted that plaintiff was
trespassing.15 Harrison asserts that she then “patiently waited” in the casino
lobby for two hours for the police, but that they never came. 16 During her
wait, plaintiff showed the host and another security guard her army paystub
and a picture of her in uniform, which she represents were shared with
Corey.17 Plaintiff states that, during this two-hour wait, she experienced
“extreme distress,” and was “in fear for her life as she was aware of the many
false arrest, excessive force[,] and police brutality incidents occurring

12
13
14
15
16
17

Id. ¶ 27.
Id. ¶ 28.
Id. ¶ 31.
Id. ¶¶ 32-33.
Id. ¶ 34.
Id. ¶¶ 35-36.
3

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throughout the country against African Americans.”18 After two hours, the
host informed Harrison that he did not believe the police were coming, and
Harrison told Corey that she was leaving and was going to file a police report.
She asserts that Corey “aggressively replied, ‘don’t forget the case number.’” 19
On November 15, 2021, plaintiff filed suit in Louisiana state court
against Vici, the entity that owns Harrah’s casino, and Caesars, the company
that operates and manages the hotel and casino in New Orleans.20 Plaintiff
also sued Corey Doe as the “security officer/manager at [Harrah’]s” who she
alleges

“bears

responsibility

in

his

official

capacity

as

security

officer/manager for administering, monitoring, maintaining[,] and securing
the gaming facility.” 21 In her petition for damages, plaintiff alleges that she
was denied entry into Harrah’s “due to her sex (gender), race, and military
status,” and was “falsely accused of acting fraudulently, and subjected to
unjustified detainment, as well as emotional and psychological distress.”22
On December 16, 2021, defendants removed the case to federal court,

18
19
20
21
22

Id. ¶ 37.
Id. ¶¶ 39-40.
Id. ¶¶ 5-8.
Id.
Id. ¶ 4.
4

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contending that the requirements of diversity jurisdiction under 28 U.S.C.
§ 1332 were met. 23
Defendants now move to dismiss all of plaintiff’s claims, asserting that
she has failed to plead facts sufficient to withstand a motion to dismiss, and
instead relies exclusively on conclusory allegations to support her claims. 24
Plaintiff opposes the motion, asserting that she has “clearly established facts
in support of her causes of action,” and requests that, if the Court grants any
part of defendants’ motion, she be given leave to amend her complaint.25 The
Court considers the parties’ arguments below.

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. The Court
must accept all well-pleaded facts as true and must draw all reasonable

23
24
25

R. Doc. 1.
R. Doc. 9 at 5.
R. Doc. 17 at 1-2.
5

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inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
On a Rule 12(b)(6) motion, the Court must limit its review to the
contents of the pleadings, including attachments. Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court
may also consider documents attached to a motion to dismiss or an
opposition to that motion when the documents are referred to in the
pleadings and are central to a plaintiff’s claims. Id. “In addition to facts
alleged in the pleadings, however, the district court ‘may also consider
matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.
App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,
78 F.3d 1015, 1017-18 (5th Cir. 1996)).

III. DISCUSSION
A.

Discrimination Claims

Harrison asserts that she experienced “racial and sex discrimination
while attempting to enter Harrah’s.”26 Specifically, she alleges that she was
denied access to Harrah’s, a public accommodation, in violation of two

26

R. Doc. 1-2 ¶ 4.
6

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Louisiana statutes. The Court evaluates plaintiff’s claims under each statute
below.
1.

La. Rev. Stat. § 51:2247

First, Harrison brings a claim for discrimination under the Louisiana
Human Rights Act (“LHRA”). 27 See La. Rev. Stat. § 51:2231, et seq. The
statute provides that “it is a discriminatory practice for a person to deny an
individual the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of a place of public
accommodation, resort, or amusement, . . . on the grounds of . . . race [or] . .
. sex.” La. Rev. Stat. § 51:2247. “Place of public accommodation, resort, or
amusement” is defined as “any place, store, or other establishment, either
licensed or unlicensed, which supplies goods or services to the general public
or which solicits or accepts the patronage or trade of the general public, or
which is supported directly or indirectly by government funds.” La. Rev.
Stat. § 51:2232(9).

The statute defines “[d]iscriminatory practice in

connection with public accommodations” as “any direct or indirect act or
practice of exclusion, distinction, restriction, segregation, limitation, refusal,
denial, or any other act or practice of differentiation or preference in the

27

Id. ¶¶ 45-55.
7

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treatment of a person or persons because of race . . . [or] sex.” La. Rev. Stat.
§ 51:2232(5).
Harrison contends, and defendants do not dispute, that Harrah’s
casino is a “place[] of public accommodation, resort, or amusement,” and is
therefore forbidden from discriminating on the basis of sex or race. 28 The
Court finds that Harrah’s, which includes a casino, hotel, and restaurant, all
of which supply goods and service to the general public and accept patronage
from the general public, qualifies as a public accommodation under the
statute.
The parties dispute whether defendants engaged in a “discriminatory
practice in connection with public accommodations” by denying plaintiff
entry into the casino. Because of the limited case law interpreting the
LHRA’s definition of “discriminatory practice,” courts have looked to federal
antidiscrimination statutes when interpreting the scope of the LHRA. See,
e.g., Cougle v. Berkshire Life Ins. Co. of Am., 429 F. Supp. 3d 208, 216 (E.D.
La. 2019); Smith v. Bd. of Comm. of La. Stadium & Exposition Dist., 385 F.
Supp. 3d 491, 506-08 (E.D. La. 2019), aff’d in part, vacated in part sub nom.
Smith v. France, 850 F. App’x 243, 248 (5th Cir. 2021) (per curiam) (noting
that the “Louisiana Human Rights Act explicitly references federal

28

Id. ¶ 51.
8

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antidiscrimination law in its statement [of purpose] . . . so it is reasonable to
look to Title III for guidance”). Given that the Fifth Circuit has noted that
La. Rev. Stat. § 51:2247 “is substantively similar to Title II of the Civil Rights
Act of 1964, 42 U.S.C. § 2000a(a),” Semien v. Pizza Hut of Am., Inc., 204
F.3d 1115, 1115 (5th Cir. 1999) (per curiam), the Court finds it appropriate to
look to the Civil Rights Act for guidance. Relevant here, the Court looks to
Title II and its caselaw as a reference for determining whether defendants’
actions constituted a “discriminatory practice.”
Similar to the LHRA, Title II of the Civil Rights Act of 1964 prohibits
discrimination in public accommodations. Fahim v. Marriot Hotel Servs.,
Inc., 551 F.3d 344, 350 (5th Cir. 2008). Title II claims may be proven by
direct or circumstantial evidence. Id. at 349. Here, there are no direct
allegations of race or sex discrimination. Plaintiff does not allege that Corey,
or any other defendant, made any reference to plaintiff’s race or gender.29
Absent direct evidence, plaintiff instead must allege that there is
circumstantial evidence that would plausibly support a claim of
discrimination. See D’Aquin v. Starwood Hotels & Worldwide Props., Inc.,
No. 15-1963, 2015 WL 5254735, *2-3 (E.D. La. Sept. 8, 2015). The Court
finds that plaintiff has failed to do so here. Plaintiff states that she was

29

R. Doc. 9-1 at 8; R. Doc. 1-2 ¶¶ 25, 31, 33, 40.
9

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denied entry into Harrah’s “despite ample evidence supporting her
identification,” because “based on her appearance alone, the manager did
not believe Harrison could be a lieutenant in the military.” 30 Based on this
encounter, Harrison concludes that Corey’s “dismissive treatment towards
her was based on the stereotyped, biased view that a black female, with a
youthful appearance, could not be a ranked Officer in the military.”31
After drawing all reasonable inferences in favor of the plaintiff, the
Court does not find that the alleged actions by defendants plausibly suggest
that defendants were motivated by plaintiff’s gender or race. Plaintiff has
not alleged any non-conclusory facts that connect Corey’s statements that
her military ID was “fake” and that “there [was] no way [she] made E-6 that
quick” to plaintiff’s race or gender. Instead, plaintiff’s assertion that the “sole
basis” for Corey’s rejection of her military ID was her “appearance as a young
black woman” 32 fails to rise beyond the level of speculation. See Twombly,
550 U.S. at 545 (“Factual allegations must be enough to raise a right to relief
above the speculative level.”).

Additionally, Harrison’s assertion that

discrimination can be inferred from Corey’s refusal to “even attempt” to scan

30
31
32

R. Doc. 17 at 6-7.
R. Doc. 1-2 ¶ 26.
R. Doc. 17 at 8.
10

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her military ID 33 likewise fails to allege facts connecting his failure to scan
the ID to her race or gender. Further, plaintiff has not alleged that she was
treated differently from other patrons of Harrah’s who were not members of
the protected classes of which plaintiff is a member. See Thymes v. AT&T
Mobility Servs., LLC, No. 19-90, 2019 WL 1768311, at *11 (W.D. La. Mar. 19,
2019), report and recommendation adopted, 2019 WL 1757864 (W.D. La.
Apr. 18, 2019) (“The plaintiff did not allege that he was treated differently
from guests at L’Auberge who were not members of a protected class;
consequently, he did not show that L’Auberge discriminated against him on
the basis of his race or his membership in any other protected class.”);
Thomas v. Two Rivers Grocery & Mkt., No. 12-205, 2012 WL 5496423, at *2
(E.D. Tex. Oct. 18, 2012), report and recommendation adopted, 2012 WL
5494278 (E.D. Tex. Nov. 13, 2012) (“The complaint does not contain any
facts that suggest that the services would be provided in a different manner
to persons outside the protected class.”).
The Fifth Circuit has approved the application of the McDonnell
Douglas burden-shifting framework to Title II claims. Fahim, 551 F.3d at
349 (collecting cases and approving of the Title VII burden-shifting
framework to analyze Title II claims). Under this framework, to set forth a

33

R. Doc. 1-2 ¶ 25.
11

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prima facie case under Title II, a plaintiff must show that: (1) she is a
member of a protected group; (2) she attempted to enjoy the benefits of the
services of a public accommodation; (3) she was denied those services; and
(4) she was treated less favorably than similarly situated persons outside of
the protected class. 34 Id. at 350. Although the Fifth Circuit has applied this
test in the summary-judgment context, it has not applied it at the motion-todismiss stage. But district courts within the circuit have applied the test in
the context of a motion to dismiss. See, e.g., Martinez v. Sprouts Farmers
Market, LLC, No. 21-2096, 2021 WL 4034063, at *2 (S.D. Tex. Sept. 3, 2021)
(granting defendant’s motion to dismiss because plaintiff had failed to
establish his prima facie case); Thymes, 2019 WL 1768311, at *11 (same).
But see D’Aquin, 2015 WL 5254735, at *2 (finding that “to hold plaintiffs at
the 12(b)(6) stage to the same standard” that was “enunciated . . . in the
summary judgment phase . . . would be inappropriate”). Here, the Court
finds that if the prima facie test applies at the motion to dismiss stage,

34

Some courts have modified the fourth element of the prima facie test
to ask whether “(a) the services were made available to similarly
situated persons outside the plaintiff’s protected class or (b) the
plaintiff ‘received services in a markedly hostile manner and in a
manner which a reasonable person would find objectively
discriminatory.’” Fahim, 551 F.3d at 350 n.2 (quoting Christian v.
Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001)). The Fifth
Circuit has “not decide[d] whether the modified test is more
appropriate for Title II cases.” Id.
12

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plaintiff still fails to allege a plausible discrimination claim because she fails
to assert that a similarly situated person outside of her protected class was
treated differently.
In sum, the Court finds that plaintiff has not set forth any plausible
allegations that defendants have engaged in a “discriminatory practice.”
Without more factual content, her allegations of discrimination are purely
conclusory, and do not rise beyond the level of speculation necessary to
survive a motion to dismiss. See Twombly, 550 U.S. at 545. Accordingly,
under the LHRA and/or Title II jurisprudence, plaintiff’s discrimination
claims under Louisiana Revised Statute § 59:2247 must be dismissed.

2.

La. Rev. Stat. § 49:146

Plaintiff also alleges that defendants discriminated against her on the
basis of her race and sex in violation of Louisiana Revised Statute § 49:146. 35
Louisiana Revised Statute § 49:146 states that:
(1) In access to public areas, public accommodations, and public
facilities, every person shall be free from discrimination based on
race, religion, or national ancestry and from arbitrary,
capricious, or unreasonable discrimination based on age, sex, or
physical or mental disability.
(2) For purposes of this Section, a public facility is defined as any
publicly or privately owned property in which the general public
35

R. Doc. 1-2 ¶¶ 56-63.
13

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has access as invitees and shall include such facilities open to the
public as hotels, motels, restaurants, cafes, barrooms, and places
or entertainment or recreation . . . .
La. Rev. Stat. § 49:146. “Access means the ability to enter . . . [to] pass to and
from . . . to obtain or make use of.” Robertson v. Burger King, Inc., 848 F.
Supp. 78, 81 (E.D. La. 1994) (quoting Becnel v. City Stores Co., 675 F.2d 731,
734 (5th Cir. 1982) (citation omitted)). In determining whether a policy of
access is in violation, a court must determine whether a “public area,
accommodation or facility has a policy of discrimination that is arbitrary,
capricious or unreasonable.”

Albright v. S. Trace Country Club of

Shreveport, Inc., 879 So. 2d 121, 133 (La. 2004) (emphasis added). The party
alleging the violation of section 49:146 bears the burden of establishing by a
preponderance of the evidence that there is a policy that is arbitrary,
capricious, or unreasonable. Id.
Here, Harrah’s meets the statutory definition of a “public
accommodation” or “public facility.” But plaintiff’s complaint fails to allege
any facts suggesting that Harrah’s has a policy or regulation that
discriminates against individuals on the basis of sex or race.

Instead,

plaintiff simply alleges that she was “denied access . . . based on her race as
an African American and sex as a female.”36 Moreover, she seeks to hold

36

Id. ¶ 60.
14

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defendants accountable under respondeat superior for the alleged
discriminatory actions of Corey because he took those actions “as he was
performing actions related to his employment at the time of the incident.” 37
Notably, plaintiff does not allege that Corey took these actions in compliance
with a company policy. Because plaintiff has failed to plausibly allege that
there was a policy of discrimination in place at Harrah’s, her claims under
Louisiana Revised Statute § 49:146 are dismissed. See Bascle v. Parrish, No.
12-1926, 2013 WL 4434911, at *7 (E.D. La. Aug. 14, 2013) (“Because Plaintiffs
fail to meet their burden of even showing that there is a policy in place, much
less one that is arbitrary, capricious, or unreasonable, Plaintiffs claims under
. . . Louisiana Revised Statute Section 49: 1[4]6 are dismissed.”). For these
reasons, the Court thus grants defendants’ motion to dismiss plaintiff’s
discrimination claims.

B.

False Imprisonment

Plaintiff has also asserted a claim of false imprisonment against the
defendants.38 The Louisiana tort of false imprisonment occurs “when one
arrests and restrains another against his will and without statutory

37
38

Id. ¶ 62.
Id. ¶¶ 64-71.
15

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authority.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La.
2006). There are two essential elements of a false imprisonment claim: “(1)
detention of a person; and (2) the unlawfulness of such detention.” Id. A
“detention” requires the “total and unlawful restraint of a person’s freedom
of locomotion.” Rawls v. Daughters of Charity of St. Vincent De Paul, Inc.,
491 F.2d 141, 146 (5th Cir. 1974) (citing Crossett v. Campbell, 48 So. 141 (La.
1909) (“Free egress must therefore be impossible.”)). Thus, in order for a
plaintiff to maintain a claim of false imprisonment, there must be “actual
physical restraint” or “circumstances that would lead a reasonable person to
believe he was not free to leave.” Baricuatro v. Indus. Pers. & Mgmt. Servs.,
Inc., No. 11-2777, 2013 WL 3364348, at *2 (E.D. La. July 3, 2013).
Harrison alleges in her complaint that Corey denied her entry into
Harrah’s casino, and that after plaintiff’s “continuing [efforts] to verify both
her driver’s license and military ID,” he accused her of trespassing. 39
Harrison further alleges that after Corey announced he was calling the police,
she “patiently waited [for] two hours inside the lobby” at Harrah’s. 40 Despite
plaintiff’s assertion that she waited “patiently,” she represents that she
believed she could not leave the casino lobby until the NOPD arrived. 41 She

39
40
41

R. Doc. 1 ¶¶ 30-33.
Id. ¶ 34.
Id. ¶ 38.
16

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thus asserts that she was “involuntarily confined” while she waited for the
NOPD because she “feared physical restraint if [she] attempted to leave the
casino because she believed Harrah’s called the police, and believed the
crime [that] she was accused of was serious and feared the repercussions she
could face.”42
Harrison has not plausibly alleged that she was detained. See Vaughn
v. Wal-Mart Stores, Inc., 734 So. 2d 156, 159 (La. App. 5 Cir. 1999) (“The
element of detention is an essential component of the tort of false
imprisonment.”). Notably, Harrison does not allege that she was told that
she could not leave the lobby, nor has she alleged that defendants attempted
to physically detain her in the lobby. See Taylor v. Johnson, 796 So. 2d 11,
13 (La. App. 3 Cir. 2001) (“The record is void of any evidence that
[defendants] detained [plaintiff], restricted her movement in the store,
advised her she could not leave, or caused her to be arrested.”). To the
contrary, plaintiff alleges that Corey accused her of “trespassing” by
remaining in the lobby—in other words, that he believed Harrison’s presence
on the property was without permission.
Moreover, plaintiff’s “unfounded belief that [she] was restrained”
while waiting for the NOPD cannot support her claim for false

42

R. Doc. 17 at 8.
17

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imprisonment. Kelly v. West Cash & Carry Building Materials Store, 745
So. 2d 743, 750 (La. App. 4 Cir. 1999). Several Louisiana cases have held that
a plaintiff’s apprehension about a future arrest or prosecution is insufficient
to establish false imprisonment. See, e.g., id. (holding that plaintiff’s fear of
being prosecuted for theft did not establish a false imprisonment claim);
Harrison v. Phillips, 539 So. 2d 911, 914 (La. App. 4 Cir. 1989) (rejecting
plaintiff’s contention that “the fact that the police were summoned” suggests
plaintiff could not leave, noting that such a rationale “would lead to the
somewhat questionable precedent that whenever a complaint is made to the
police the accused could claim false imprisonment”). Thus, the Court finds
that plaintiff has not alleged a plausible claim for false imprisonment, and
thus grants defendants’ motion to dismiss her false-imprisonment claim.

C.

Intentional Infliction of Emotional Distress

Finally, plaintiff has asserted a claim for intentional infliction of
emotional distress.43 To prevail on a claim for intentional infliction of
emotional distress, plaintiff must prove “(1) that the conduct of [defendants]
was extreme and outrageous; (2) that the emotional distress suffered by
[plaintiff] was severe; and (3) that [defendants] desired to inflict severe

43

R. Doc. 1-2 ¶¶ 72-80.
18

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emotional distress or knew that severe emotional distress would be certain
or substantially certain to result from [its] conduct.” Roberson v. August,
820 So. 2d 620, 629 (La. App. 4 Cir. 2002); White v. Monsanto Co., 585 So.
2d 1205, 1209 (La. 1991). Conduct is considered “extreme and outrageous”
when it is “so atrocious as to pass the boundaries of decency and to be utterly
intolerable to civilized society.” Roberson, 820 So. 2d at 620 (citing Johnson
v. English, 779 So. 2d 876 (La. App. 2d Cir. 2000)). “[M]ere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities” do
not rise to the level of “extreme and outrageous conduct.” White 585 So. 2d
at 1209; see also Singleton v. St. Charles Parish, 833 So. 2d 486, 495 (La.
App. 5 Cir. 2002) (“White v. Monsanto established a high threshold for
evidence of intentional infliction of emotional distress.”).
Nothing in Harrison’s complaint indicates that defendants engaged in
such extreme and outrageous conduct. Harrison alleges that Corey “rudely,
and condescendingly” told her that her military ID was “fake,” and
subsequently “rudely and dismissively” announced that he was calling the
NOPD. 44 But such conduct does not rise to the degree of “extreme and
outrageous” that is required for an intentional-infliction-of-emotionaldistress claim. At most, plaintiff’s allegations establish that Corey was rude

44

Id. ¶¶ 25-26, 31.
19

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to plaintiff and insulted her, but these assertions of “insults, indignities, . . .
annoyances, and petty oppressions” are insufficient to establish a claim of
intentional infliction of emotional distress. See White 585 So. 2d at 1209.
Compare Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1026 (La. 2000)
(citing Bernard v. Doskocil Companies, 861 F. Supp. 1006 (D. Kan. 1994)
“(holding that a cumulative barrage of racial slurs and physical threats,
including a threat to set the employee afire, may constitute extreme and
outrageous conduct).”).
Moreover, Harrison’s complaint does not indicate that Corey
intended to cause or knew he would cause plaintiff severe emotional distress.
Accordingly, plaintiff’s complaint has failed to state a valid claim for
intentional infliction of emotional distress. Defendants’ motion to dismiss
plaintiff’s intentional-infliction-of-emotional-distress claim is granted.
D.

Leave to Amend

Plaintiff requests that, in the event that the Court grants defendants’
motion to dismiss, she be given leave to amend her complaint to allege facts

20

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sufficient to support her claims.45 Defendants oppose this request on the
grounds that any amendment would be futile. 46
The Court should “freely give” leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2); Leal v. McHugh, 731 F.3d 405, 417 (5th
Cir. 2013). When deciding whether leave to amend should be given, the
Court considers several factors, including “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of the amendment.”
Forman v. Davis, 371 U.S. 178, 182 (1962). The Court finds that none of
these factors are present here.

Specifically, the Court finds that, with

sufficiently pleaded facts, the “circumstances relied upon by . . . plaintiff may
be a proper subject of relief.” Id. The Court therefore dismisses Harrison’s
claims without prejudice and with leave to amend within twenty-one days of
entry of this Order.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion to

dismiss, and dismisses plaintiff’s complaint WITHOUT PREJUDICE. The

45
46

R. Doc. 17 at 10
R. Doc. 20 at 8.
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Case 2:21-cv-02310-SSV-KWR Document 21 Filed 05/10/22 Page 22 of 22

Court GRANTS plaintiff leave to file an amended complaint within twentyone days of this Order.

10th
New Orleans, Louisiana, this _____ day of May, 2022.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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