Harrison v. John W. Stone Oil Distributors, LLC et al

Filing 22

ORDER: IT IS HEREBY ORDERED that Defendant Stone Oil's 12 Motion to Dismiss and/or Strike is MOOT. Signed by Chief Judge Nannette Jolivette Brown on November 13, 2023. (mp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNOR HARRISON

CIVIL ACTION

VERSUS

CASE NO. 23-5037

JOHN W. STONE OIL DISTRIBUTORS, LLC et al.

SECTION: “G” (2)

ORDER
Pending before the Court is Defendant John W. Stone Oil Distributors, LLC’s (“Stone Oil”)
“Motion to Dismiss and/or Strike.” 1 On August 31, 2023, Plaintiff Kennor Harrison (“Plaintiff”)
filed a complaint alleging that his employer, Stone Oil, violated his rights under 42 U.S.C. Section
2000e (“Title VII”) and 42 U.S.C. Section 1981 when Stone Oil discriminated against him based
on his race. 2 Plaintiff also alleges that Stone Oil’s “policies, practices, hiring procedures, and
training decisions had a disparate impact upon him based on his race.” 3 On October 23, 2023,
Stone Oil filed the instant motion, asserting that the Court should dismiss the following claims: s
(1) Title VII hostile work environment, (2) Title VII retaliation, (3) Title VII disparate impact, (4)
Title VII failure to promote, (5) Section 1981 retaliation, (6) Section 1981 hostile work
environment, and (7) Section 1981 disparate impact. 4 Stone Oil argues that Plaintiff’s Title VII
hostile work environment, retaliation, and disparate impact claims should be dismissed because

1

Rec. Doc. 12.

2

Rec. Doc. 1 at 1.

3

Id.

4

Rec. Doc. 12 at 1.

1

Plaintiff failed to exhaust his administrative remedies before filing his complaint in this Court.5
Stone Oil further argues that Plaintiff’s failure to promote claim is untimely, his Section 1981
disparate impact claim is not legally actionable, he insufficiently plead a Section 1981 retaliation
claim, and he insufficiently plead Section 1981 and Title VII hostile work environment claims. 6
On November 7, 2023, Plaintiff filed an “Ex-parte Motion to Amend and Supplement
Plaintiff’s Petition for Damages,” 7 requesting leave to amend the Complaint “to address and
remedy certain issues raised in [Stone Oil’s] motion.” 8 On November 9, 2023, the Court granted
Plaintiff leave to file the Amended Complaint. 9 On November 9, 2023, Plaintiff filed an amended
complaint. 10
On November 9, 2023, Plaintiff also filed a response opposing Defendant’s motion. 11 First,
Plaintiff notes that his Amended Complaint removed allegations of harassment and hostile workenvironment under Title VII, so Stone Oil’s motion to dismiss on the basis of harassment and
hostile-work environment is moot. 12 Second, Plaintiff notes that he amended his allegations as to
the Title VII retaliation claim. 13 Third, Plaintiff notes that he amended his allegations as to the Title
VII disparate impact claims, therefore also curing the pleading defects as to his Section 1981

5

Rec. Doc. 12-1 at 4–6.

6

Id. at 7–11.

7

Rec. Doc. 17.

8

Id. at 1.

9

Rec. Doc. 20.

10

Rec. Doc. 21.

11

Rec. Doc. 19.

12

Id. at 10.

13

Id. at 11.

2

disparate impact claims. 14 Fourth, Plaintiff notes that he amended his allegations as to his Section
1981 claim for retaliation and hostile work-environment. 15
Courts vary in how they proceed when a plaintiff files an amended complaint while a Rule
12(b)(6) motion is still pending. 16 Many district courts—including this Court—routinely deny as
moot motions to dismiss that are filed prior to an amendment of a complaint. 17 Although courts
may address the merits of a motion to dismiss even after an amended complaint is filed, as a general
rule, “if applying the pending motion to the amended complaint would cause confusion or detract
from the efficient resolution of the issues, then it makes sense to require the defendant to file a
new motion specifically addressing the amended complaint.” 18
Stone Oil’s pending motion to dismiss and/or strike asserts that Plaintiff’s Section 1981
disparate impact claim is not legally actionable, his Section 1981 retaliation claim was
insufficiently plead, and his Section 1981 and Title VII hostile work environment claims were also

14

Id. at 14–15.

15

Id. at 15–16.

16

1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 15.

See Athletic Training Innovations, LLC v. eTagz, inc., No. 12-2540, 2013 WL 360570, at *3 (E.D. La2013)
(Brown, J.); see also, e.g., Lee v. Ability Ins. Co., No. 12-17, 2012 WL 3186270, at *1 (S.D. Miss. 2012) (“The Court
finds that it would be impractical and unwise to proceed further on the Motion to Dismiss since it challenges the
original Complaint, which is no longer the operative pleading.”); Abb, Inc, v. Reed City Power Line Supply Co., 2007
WL 2713731, at *1 (W.D. Mich. 2007) (“Because the original complaint has been superseded and nullified, there is
no longer a live dispute about the propriety or merit of the claims asserted therein; therefore, any motion to dismiss
such claims is moot.”); Calloway v. Green Tree Servicing, LLC, 559 F. Supp. 2d 543, 546 (D. Del. 2009) (“As the
amended complaint has superseded the original, defendant’s motion to dismiss has become moot.”). But see Illiano v.
Mineola Union Free Sch. Dist., 585 F. Supp. 2d 341, 349 (E.D.N.Y. 2008) (“‘When a plaintiff amends its complaint
while a motion to dismiss is pending’ the court may ‘den[y] the motion as moot [or] consider[ ] the merits of the
motion in light of the amended complaint.’”) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.
Supp. 2d 376, 384 (D. Conn. 2008)); Patton Elec. Co., Inc, v. Rampart Air, Inc., 777 F. Supp. 704, 713 (N.D. Ind.
1991) (“If some of the defects raised in the original motion remain in the new pleading, the court simply may consider
the motion as being addressed to the amended pleading.”) (quoting 6 Wright, Miller & Kane, Federal Practice and
Procedure, § 1476 at 556–58 (2d ed. 1990)).
17

18

1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 15.

3

insufficiently plead. The Amended Complaint clarifies removed Plaintiff’s Title VII harassment
and hostile-work environment claims. Plaintiff also amended his allegations as to the Title VII and
Section 1981 disparate impact claims, the Title VII retaliation claim, and the Section 1981
retaliation and hostile-work environment claims. Therefore, the Court concludes that applying the
pending motion to the Amended Complaint would detract from the efficient resolution of the
issues.
Accordingly,
IT IS HEREBY ORDERED that Defendant Stone Oil’s “Motion to Dismiss and/or
Strike” 19 is MOOT.

13th day of November, 2023.
NEW ORLEANS, LOUISIANA, this _____

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

19

Rec. Doc. 12.

4