Thawar v. 7-Eleven Inc
Filing
11
MEMORANDUM OPINION AND ORDER: The Court GRANTS 7-11's 5 Motion to Dismiss with respect to Thawar's COBRA, battery, and negligent misrepresentation claims, and DENIES it with respect to her conversion and negligence claims. The Court further GRANTS Thawar leave to amend her complaint with respect to her COBRA and battery claims on or before 3/11/2016. (Ordered by Judge Jane J Boyle on 2/29/2016) (ran)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GULNAR THAWAR,
Plaintiff,
v.
7-ELEVEN, INC.,
Defendant.
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CIVIL ACTION NO. 3:15-CV-2675-B
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant 7-Eleven, Inc.’s Motion to Dismiss Plaintiff’s Complaint (Doc.
5). For the reasons that follow, the Court GRANTS in part and DENIES in part the Motion.
I.
BACKGROUND
This case arises from Defendant 7-Eleven, Inc.’s (“7-11") alleged misconduct towards Plaintiff
Gulnar Thawar (“Thawar”) during the time she worked there. In her Complaint, Thawar recounts
a litany of abuses and misdeeds. First and foremost, she alleges that 7-11 failed to properly safeguard
her personal identifying and financial information (“PII”), which resulted in her identity being stolen.
Doc. 1, Compl. ¶¶ 2–3, 21–38. After bringing the breach to 7-11’s attention, she was treated with
increasing hostility, culminating in a physical battery by one of her managers. Id. ¶¶ 39–57.
Subsequently, Thawar missed approximately two weeks of work after suffering injuries in an
unrelated fall from her car. Id. ¶¶ 58–88. The hostile treatment continued upon her return, and she
elected to work from home, ostensibly with 7-11’s approval. Id. ¶¶ 89–104. During this time, 7-11
notified Thawar that it was designating her as an “inactive employee,” and that she would not have
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any job duties until a doctor cleared her to return to work. Id. ¶¶ 108–13. Despite her protestations,
7-11 did not change this designation. Id. ¶¶ 114–17.
Ultimately, Thawar voluntarily resigned her position. Id. ¶ 118, Ex. E. 7-11 accepted her
resignation, and later did not oppose Thawar’s application for unemployment benefits. Id. ¶¶ 119,
120–23, Ex. F. After the separation, Thawar did not receive her COBRA information1 from 7-11
until it was too late to keep her health insurance coverage, though 7-11 maintains that it sent her
the information in a timely manner. Id. ¶¶ 124–27, 131–32. In response to her request for her
personal belongings, 7-11 informed Thawar that it could not locate any such belongings after an
extensive search. Id. ¶¶ 128–30. Among the missing possessions were a Quran, photographs, glasses,
a personal laptop and tablet, and information regarding the theft of her PII. Id. ¶ 168(A).
All said, Thawar brings seven claims against 7-11: (1) FMLA discrimination and retaliation
based on injuries suffered in the fall from her car; (2) FMLA discrimination and retaliation based on
her major depressive disorder; (3) failure to provide required COBRA information; (4) conversion;
(5) battery; (6) negligence; and (7) negligent misrepresentation. Compl. ¶¶ 3, 137–94. 7-11 filed the
instant Motion, which is best characterized as a motion for partial dismissal, to dismiss Thawar’s
COBRA, conversion, battery, negligence, and negligent misrepresentation claims. Doc. 5, Def.’s Mot.
to Dismiss; Doc. 6, Def.’s Br. in Supp. Thawar has filed her Response, and 7-11 its Reply. Doc. 8,
Pl.’s Resp.; Doc. 10, Br. in Reply to Pl.’s Resp. [hereinafter “Def.’s Reply”]. The Motion is now ready
for review.
1
The Consolidated Omnibus Budget Reconciliation Act (COBRA), in relevant part, obligates an
employer to notify its ERISA plan administrator of an employee’s qualifying event, which includes
termination. 29 U.S.C. § 1166(a)(2). The plan administrator must then notify the employee of any rights she
might have under COBRA. Id. § 1166(a)(4).
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II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d
464, 467 (5th Cir. 2004)). The Court will “not look beyond the face of the pleadings to determine
whether relief should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999).
To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility 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. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but
it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and
alterations omitted).
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III.
ANALYSIS
In its Motion, 7-11 seeks to dismiss five of Thawar’s seven claims. The Court considers the
viability of each challenged claim in turn.
A.
Thawar’s Claims
1.
COBRA
Thawar has not identified her ERISA plan’s administrator, which 7-11 argues is a fatal
omission. Def.’s Br. in Supp. 5–6. Acknowledging this oversight, Thawar requests leave to replead
her claim. Pl.’s Resp. 9.
“Only a plan administrator can be held liable under section 1132(c).”2 Mares v. Wood Grp.
Mustang, Inc., No. H-14-089, 2015 WL 75271, at *2 (S.D. Tex. Jan. 6, 2015) (quoting Hiney Printing
Co. v. Branter, 243 F.3d 956, 961 (6th Cir. 2001)). To state a claim for a violation of 29 U.S.C.
§ 1166(a), then, a plaintiff must include the plan administrator as a party. See Aaron v. Leday, No.
4:13-CV-1716, 2013 WL 5936623, at *4–5 (S.D. Tex. Nov. 5, 2013). Because Thawar has failed
to do this, the Court dismisses her COBRA claim.
2.
Conversion
7-11 next attacks Thawar’s conversion claim, insisting that she has failed to plead that it had
the requisite intent to commit conversion. Def.’s Br. in Supp. 7–8. Thawar disagrees, arguing that
intent is not a required element of conversion and, alternatively, that 7-11’s inordinately negative
response to her complaints about her PII supports the inference that it intended to deprive her of her
2
29 U.S.C. § 1132(c) provides the enforcement mechanism for violations of § 1166.
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property. Pl.’s Resp. 3–4.
Under Texas law, conversion has four elements:
(1) [P]laintiff owned, had legal possession of, or was entitled to possession of the
property; (2) defendant assumed and exercised dominion and control over the
property in an unlawful and unauthorized manner, to the exclusion of and
inconsistent with plaintiff's rights; (3) plaintiff made a demand for the property; and
(4) defendant refused to return the property.
Hoffman v. AmericaHomeKey, Inc., No. 3:12-CV-3806, 2014 WL 7272596, at *8 (N.D. Tex. Dec.
22, 2014) (quoting Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 888 (Tex.
App.—Dallas 2009, no pet.)). “Before there can be a conversion, there must be an intent on the part
of the defendant to assert some right in the property.” Dolenz v. Nat’l Bank of Tex. at Fort Worth, 649
S.W.2d 368, 370 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.). “However, that intent need not
be an intent to assert a right of ownership or title; it can be an intent to assert the right of
possession.” Robinson v. Nat’l Autotech, Inc., 117 S.W.3d 37, 40 (Tex. App.—Dallas 2003, pet.
denied).
Here, Thawar has satisfactorily alleged facts that at least give rise to a plausible inference that
7-11 is liable for conversion. She asserts that she owned the property at issue; she left the items at
7-11; she has requested their return; and 7-11 has not returned them, stating that it cannot locate
the items. Combined with the hostile treatment she allegedly received, these facts, viewed in the
light most favorable to Thawar, are enough to imply that 7-11 is purposely withholding her property
as further retaliation. Taking action that permanently deprives a plaintiff of property counts as
exercising “dominion and control” over that property. See Labaty v. UWT, Inc., No. SA-13-CV-389,
2013 WL 4520562, at *5 (W.D. Tex. Aug. 26, 2013). Whether there is proof to support these
allegations is a matter for summary judgment. For now, though, the Court cannot say that she has
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failed to state a claim for conversion.3
3.
Battery
As to Thawar’s battery claim, 7-11 requests dismissal on grounds that she has not alleged that
it authorized her supervisor, Mark Markovic (“Markovic”), to use physical force to discipline
employees. Def.’s Br. in Supp. 9–10. Analogizing to discrimination, Thawar contends that direct
evidence of such authorization is seldom available. Pl.’s Resp. 4. She also argues that 7-11 can be
vicariously liable for Markovic’s actions even if it did not expressly authorize him to use physical
force. Id. at 5.
The elements of a battery claim are “(1) a harmful or offensive contact (2) with a plaintiff's
person.” Jackson v. Tex. S. Univ., 997 F. Supp. 2d 613, 632 (S.D. Tex. 2014). Here, Thawar seeks to
hold 7-11, rather than Markovic, liable for its employee’s actions. “As a general rule in Texas, an
employer cannot be vicariously liable for the intentional torts of assault or battery perpetrated by its
employee because such acts are not ordinarily within the course and scope of an employee’s authority
or employment.” Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex. App.—Fort Worth
2002, no pet.). Such conduct “is considered as an expression of personal animosity and not for the
purpose of carrying out a[n employer’s] business.” Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 453
(Tex. App.—Tyler 1996, no writ). Nonetheless, “an employer may be held liable for the tortious acts
of an employee if the acts are within the course and scope of employment.” Buck v. Blum, 130 S.W.3d
285, 288 (Tex. App.—Houston [14th Dist.] 2004, no pet.). “This requires proof that the employee
3
7-11’s reliance on Smith v. Maximum Racing, Inc., 136 S.W.3d 337 (Tex. App.—Austin 2004, no
pet.), is unavailing. In Smith, the defendant admitted to exercising dominion and control; the only question
was whether that exercise of control was lawful. Id. at 341–42. Thus, intent was not even at issue in that case.
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is acting (1) within the general authority granted by the employer, (2) in furtherance of the
employer’s business, and (3) for the accomplishment of an object for which he is employed.” Id. “An
employee’s tortious conduct will be found to be within the scope of employment when the tortious
conduct is of the same general nature as that authorized or incidental to the conduct authorized.”
Durand v. Moore, 879 S.W.2d 196, 199 (Tex. App.—Houston [14th Dist.] 1994, no writ).
When deciding whether an employee’s intentionally tortious actions occurred within the
scope of his employment, “courts consider whether the [tort] was so connected with and immediately
arising out of authorized employment tasks as to merge the task and the” tort into a single action
“imputed to the employer.” Buck, 130 S.W.3d at 289. In Durand, for example, the Texas Court of
Appeals upheld liability against a club whose employee, tasked with “control[ling] the admittance
of customers into the club,” assaulted the plaintiff after he objected to the employee’s preferential
treatment of other customers. 879 S.W.2d at 200. The assault was merely “overzealous enforcement
of the criteria and procedures used to select waiting customers for admittance into the club.” Id.
This case is distinguishable from Durand. There, the employee’s job was “to guard the
employer’s property and to protect it from trespassers,” and thus “the act of using force [could] be
in furtherance of the employer’s business.” Id. (quoting Tex. & Pac. Ry. v. Hagenloh, 247 S.W.2d 236,
239 (Tex. 1952)). Here, on the other hand, there is no allegation to support the conclusion, either
directly or inferentially, that the use of physical force was within Markovic’s general authority, or that
it furthered 7-11’s business. Thawar does allege that he “had the authority . . . to discipline
employees within the work unit,” Compl. ¶¶ 176–77, but this is not enough to show that 7-11 put
Markovic “in a position that involves the use of force, so that the act of using force is in the
furtherance of the employer’s business.” Knight v. City Streets, L.L.C., 167 S.W.3d 580, 583 (Tex.
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App.—Houston [14th Dist.] 2005, no pet.).
Nor does GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999), help Thawar. In that
case, the plaintiffs’ employer was held liable for its employee’s intentional infliction of emotional
distress. Id. at 617–18. The Texas Supreme Court relied on two rationales in reaching this
conclusion: first, that the employee’s conduct was within his general authority as plaintiffs’
supervisor; and second, that he was a vice principal of the employer, and thus his conduct could be
properly imputed to it. Id. But Bruce did not involve the use of physical force—rather, the plaintiffs
complained of the supervisor’s “daily use of profanity, short temper, and . . . abusive and vulgar
dictatorial manner.” Id. at 608. Moreover, the employer admitted that the supervisor’s actions “were
‘mere employment disputes.’” Id. at 618. Thus, the case does not bear on whether Markovic’s battery
was within the scope of his employment.
Nor has Thawar alleged facts that would show Markovic is a vice principal of 7-11, as this
would require that he “have authority to employ, direct, and discharge” 7-11’s employees, or that 711 “has confided the management of the whole or a department or division of [its] business” to him.
Id. Unlike Bruce, where the supervisor was “the highest ranking management person stationed at the
[plaintiffs’] facility, and . . . had authority to employ, direct, and discharge employees,” id., Thawar
has asserted only that Markovic was a manager in 7-11’s “Quality Assurance” work unit. Compl.
¶ 175. This is a far cry from alleging that Markovic was (1) a corporate officer, (2) authorized to
“employ, direct, and discharge” employees, (3) “engaged in the performance of nondelegable or
absolute duties of the” employer, or (4) entrusted with “ the management of the whole or a
department or division of [7-11’s] business.” Bennett v. Reynolds, 315 S.W.3d 867, 884 (Tex. 2010).
Thawar has not sufficiently alleged that 7-11 authorized Markovic to use force to discipline
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its employees, that his actions were within his general authority, or that he was a vice principal of the
company. She has therefore failed to state a battery claim against 7-11.
4.
Negligence
To defeat Thawar’s negligence claim, 7-11 argues that (1) it is preempted by the Texas
Workers’ Compensation Act (TWCA); and (2) Thawar has failed to plead physical damages. Def.’s
Br. in Supp. 10–11; Def.’s Reply 4–5.4 Thawar, on the other hand, contends that her Complaint
clearly shows that she has suffered financial injuries as a result of 7-11’s negligent handling of her PII.
Pl.’s Resp. 5–7. She also argues that negligence claims like hers are “neither new nor novel,” pointing
to two complaints based on the mishandling of employees’ and customers’ PII. Id. at 6; Doc. 9, Pl.’s
App. in Supp.
The TWCA “provides the exclusive remedy for injuries sustained by an employee in the
course of his employment as a result of his employer’s negligence.” Ward v. Bechtel Corp., 102 F.3d
199, 203 (5th Cir. 1997). “The only exception to this rule is for ‘injuries resulting from an intentional
or willful act of the employer.’” Ajaz v. Cont’l Airlines, 156 F.R.D. 145, 148 (S.D. Tex. 1994). To
avail itself of this protection, however, an employer must be a subscriber under the TWCA. Briggs
v. Toyota Mfg. of Tex., 337 S.W.3d 275, 282 (Tex. App.—San Antonio 2010, no pet.); see also Cook
v. Fidelity Invs., 980 F. Supp. 438, 441 (N.D. Tex. 1995). Here, there is no allegation that 7-11 was
or was not a subscriber. Nonetheless, the courts that have dismissed negligence claims based on
TWCA preemption have relied on uncontroverted evidence that the employer was, in fact, a
4
7-11 also argues that it cannot be held liable for Thawar’s fall from her car. Def.’s Br. in Supp.
11–13. Thawar has clarified, however, that she does not allege that 7-11’s negligence caused her fall. Pl.’s
Resp. 6. The Court will therefore not address this argument for dismissal.
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subscriber. See, e.g., Balderrama v. Pride Indus., Inc., 963 F. Supp. 2d 646, 652–53, 663 (W.D. Tex.
2013); Ajaz, 156 F.R.D. at 148–49. The Court has no such evidence in front of it, nor has Thawar
admitted that 7-11 is a subscriber. It therefore declines to dismiss her claim based on TWCA
preemption.
What effect Thawar’s failure to plead physical damages has is also unclear. She admits that
she suffered only financial losses as a result of 7-11’s allegedly negligent handling of her PII, Pl.’s
Resp. 6, which appears to implicate Texas’s economic loss doctrine. Broadly stated, the economic
loss doctrine holds that “a person who suffers only pecuniary loss through the failure of another
person to exercise reasonable care has no tort cause of action against that person.” See Sharyland
Water Supply Corp. v. City of Alton, Tex., 354 S.W.3d 407, 415 (Tex. 2011) (quoting Jay M. Feinman,
The Economic Loss Rule and Private Ordering, 48 ARIZ. L. REV. 813, 813 (2006)). The doctrine has
been more limited in practice, however. In Sharyland, for instance, the Texas Supreme Court
recognized that it has applied the doctrine “only in cases involving defective products or failure to
perform a contract.” Id. at 418.
The court expanded the doctrine’s application slightly in LAN/STV v. Martin K. Eby Constr.
Co., Inc., 435 S.W.3d 234 (Tex. 2014), to include situations in which the parties feasibly could have
allocated risks by contract. Id. at 248. Where allocation of risks by contract is not common, on the
other hand, recovery in tort may still be available. See id. at 243–44 (identifying legal malpractice as
an exception to the doctrine because “agreements regarding legal representation are not required in
Texas, . . . and until relatively recently have not been the norm”). Furthermore, even where there
is a contract between the parties, Texas courts will not apply the economic loss doctrine to bar a tort
suit when the defendant is alleged to have breached “an independent legal duty, separate from the
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existence of the contract itself.” Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc.,
960 S.W.2d 41, 47 (Tex. 1998). Ultimately, “the underlying purpose of the economic loss rule is to
preserve the distinction between contract and tort theories in circumstances where both theories
could apply.” LAN/STV, 435 S.W.3d at 240 (internal alterations omitted) (quoting Vincent R.
Johnson, The Boundary-Line Function of the Economic Loss Rule, 66 WASH. & LEE L. REV. 523, 546
(2006)).
Here, it is not clear whether 7-11’s data protection policy, which Thawar alleges 7-11
violated, was part of a contract with Thawar. Thawar acknowledges that she “relied on 7-11’s
policies and procedures, including [the data protection policy],” Compl. ¶ 19, but reliance alone does
not a contract make.5 See Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 683, 692 (Tex.
App.—El Paso 2015, pet. denied) (identifying the elements of contract formation). If the policy was
part of Thawar’s employment contract, then the economic loss doctrine may well apply to bar her
claim. But the Court cannot discern from the Complaint if that is the case, and given the Texas
Supreme Court’s reticence to expand the doctrine beyond the context of products liability and
contractual relations,6 the Court will refrain from dismissing Thawar’s negligence claim at this time.
5.
Negligent Misrepresentation
7-11 last attacks Thawar’s negligent misrepresentation claim, arguing that she has based her
5
Although reliance is an element of a promissory estoppel claim, see Trevino & Assocs. Mech., L.P.,
400 S.W.3d 139, 146 (Tex. App.—Dallas 2013, no pet.), such a claim is “available to a claimant only in the
absence of a valid and enforceable contract.” Doctors Hosp. 1997, L.P. v. Sambuca Hous., L.P., 154 S.W.3d
634, 636–37 (Tex. App.—Houston [14th Dist.] 2004, pet. abated).
6
The Court has no information regarding whether, as in LAN/STV, Thawar could have negotiated
protection for her PII as part of her employment contract. Nor would considering such evidence at this stage
be appropriate, as the Court cannot “look beyond the face of the pleadings to determine whether relief should
be granted based on the alleged facts.” Spivey, 197 F.3d at 774.
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claim solely on its promise to act in the future, which Texas law does not permit. Def.’s Br. in Supp.
14–15; Def.’s Reply 5–6. Thawar agrees that such promises cannot qualify as negligent
misrepresentations, but contends that 7-11’s representation in this case involved a “present, ongoing,
. . . existing fact,” which is actionable. Pl.’s Resp. 8.
In Texas, negligent misrepresentation requires proof of four elements:
(1) [T]he representation is made by a defendant in the course of his business, or in
a transaction in which he has a pecuniary interest; (2) the defendant supplies “false
information” for the guidance of others in their business; (3) the defendant did not
exercise reasonable care or competence in obtaining or communicating the
information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the
representation.
General Elec. Capital Corp. v. Posey, 415 F.3d 391, 395–96 (5th Cir. 2005). Such claims “cannot be
based on promises to act or not act in the future, but rather must focus on misstatements of existing
fact.” Agri-Plastics, Inc. v. Hog Slat, Inc., No. 3:09-CV-1271, 2010 WL 711811, at *3 (N.D. Tex. Feb.
26, 2010); see also Gay v. City of Wichita Falls, 457 S.W.3d 499, 508 (Tex. App.—El Paso 2014, no
pet.) (“[T]he sort of ‘false information’ contemplated in a negligent misrepresentation case is a
misstatement of existing fact, as opposed to false information about a promise of future conduct.”
(internal quotation marks omitted) (quoting Airborne Freight Corp. v. C.R. Lee Enters., Inc., 847
S.W.2d 289, 295, 298 (Tex. App.—El Paso 1992, writ denied))).
Here, the allegedly false information that 7-11 provided was its data protection policy, which
states, in relevant part:
All non-public information which is not physically protected should be encrypted by
an approved encryption technique such as Triple Data Encryption Standard (3DES)
on systems that have encryption capability. Microsoft Windows 2000 and Windows
XP have an option to enable Encrypted File Systems (EFS). This feature should be
enabled by default on these platforms after procedures have been implemented to
administer password recovery.
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Compl. ¶ 14(A)(1). The Court reads this policy as, at best, a promise of future conduct. Thawar has
not alleged that 7-11’s PII protection at the time she read the policy was not as described; rather, she
asserts that, at some point after she took her job, 7-11 stopped adhering to the policy. Thus, she
accuses 7-11 of misrepresenting that it would continue to follow the policy during the course of her
employment, which is merely a promise of future conduct.
This case is analogous to Milton v. U.S. Bank Nat’l Ass’n, 508 F. App’x 326 (5th Cir. 2013),
which arose from a mortgage foreclosure. There, the plaintiff sued the mortgagee of his property after
it foreclosed on the subject property while the plaintiff’s loan modification application was pending,
which it had promised not to do. Id. at 328. The Fifth Circuit found that the plaintiff’s negligent
misrepresentation claim failed as a matter of law because the mortgagee’s representation was merely
a “promise[] of future action.” Id. at 329. Similar to the mortgagee’s promise that it would not
foreclose while the mortgagor’s application was pending, 7-11—at most—promised Thawar that it
would protect her PII in a certain way during her employment. The fact that it may ultimately have
departed from that practice does not mean that it misrepresented an existing fact at the time it
communicated the policy to Thawar, any more than the mortgagee conveyed false information to
the mortgagor in Milton. Thawar’s claim must be dismissed.
B.
Leave to Amend
Normally, courts will afford a plaintiff the opportunity to overcome pleading deficiencies,
unless it appears that the defects are incurable. See Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often afford plaintiffs at least one
opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects
are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a
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manner that will avoid dismissal.”); Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)
(stating that “a court ordinarily should not dismiss the complaint except after affording every
opportunity for the plaintiff to state a claim upon which relief can be granted” (internal alterations
omitted)).
Thawar has requested leave to amend her COBRA claim to identify the plan administrator.
Pl.’s Resp. 9. The Court concludes that leave to amend this claim is appropriate, and she may also
amend her battery claim, if she can do so in a way that overcomes the deficiencies identified above.
Amending the negligent misrepresentation claim would be futile, however, because the promise that
Thawar has identified is one relating to future conduct, which simply is not actionable as a negligent
misrepresentation. See Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000) (finding
that “[i]t is within the district court’s discretion to deny a motion to amend if it is futile,” which
occurs when “the amended complaint would fail to state a claim upon which relief could be
granted”).
IV.
CONCLUSION
Based on the foregoing, the Court GRANTS 7-11’s Motion to Dismiss with respect to
Thawar’s COBRA, battery, and negligent misrepresentation claims, and DENIES it with respect to
her conversion and negligence claims. The Court further GRANTS Thawar leave to amend her
complaint with respect to her COBRA and battery claims on or before March 11, 2016.
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SO ORDERED.
SIGNED: February 29, 2016
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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