Lorfing v. Gerdau Ameristeel US Inc

Filing 18

Order Accepting 15 Findings and Recommendations, granting 7 Motion to Dismiss for Failure to State a Claim, overruling 16 Objection to Findings and Recommendations, denying alternative request to amend pleadings, and dismissing with prejudice action. (Ordered by Judge Sam A Lindsay on 2/13/2017) (chmb)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KATHIE LORFING,
Plaintiff,
v.
GERDAU AMERISTEEL U.S. INC.,
Defendant.

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Civil Action No. 3:16-CV-915-L

ORDER
On January 26, 2017, United States Magistrate Judge Irma Carrillo Ramirez entered the
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”),
recommending that the court grant Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 7)
and dismiss with prejudice Plaintiff’s defamation claim and this action under Federal Rule of Civil
Procedure 12(b)(6). The magistrate judge also recommended that the court deny Plaintiff’s request
for leave to amend her pleadings because she did not attach a proposed amended complaint for the
court to evaluate and determine whether she should be allowed to amend her pleadings.
In her objections to the Report, Plaintiff contends that her pleadings are sufficient to state a
claim for defamation under Texas law. Notwithstanding this objection, Plaintiff contends that she
should be allowed to amend her pleadings because she “could not have anticipated the Magistrate’s
split ruling which denied intracorporate publication, and attached a responsive amended complaint
prior to the [magistrate judge’s] ruling.” Pl.’s Obj. 3.
Having reviewed the motion, briefs, pleadings, record in this case, and Report, and having
conducted a de novo review of that portion of the Report to which objection was made, the court
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determines that the findings and conclusions of the magistrate judge are correct, and accepts them
as those of the court. Accordingly, the court concludes that Plaintiff has failed to state a claim upon
which relief can be granted, and the only remaining question is whether Plaintiff should be allowed
to amend her pleadings.
The provision of Rule 15(a)(2) of the Federal Rules of Civil Procedure that states “[t]he court
should freely give leave when justice so requires” is not without limitation. The decision to allow
amendment of a party’s pleadings is within the sound discretion of the district court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994)
(citation omitted). In determining whether to allow an amendment of the pleadings, a court
considers the following: “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 amendment.” Foman, 371
U.S. at 182; Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation
omitted).
By “split ruling,” Plaintiff presumably refers to the magistrate judge’s conclusion that
Defendant was entitled to dismissal of her defamation claim on one of the three grounds asserted in
Defendant’s motion to dismiss. Plaintiff does not explain why she could not have anticipated that
the magistrate judge might recommend that the court grant Defendant’s motion to dismiss her
defamation claim based on one or all three of the grounds asserted in Defendant’s motion; nor does
she explain why she could not have submitted a proposed amended complaint that cured the
deficiencies noted in Defendant’s motion to dismiss before the magistrate judge entered her Report.
Even assuming that Plaintiff did not anticipate that the magistrate judge would recommend that the
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court grant Defendant’s motion to dismiss, she does not explain in her objections how she would
cure the deficiencies noted in Defendant’s motion and the magistrate judge’s Report. She instead
continues to contend that her pleadings are sufficient to state a claim for defamation. Under Federal
Rule of Civil Procedure 15(a), Plaintiff was entitled as a matter of right to amend her pleadings
without leave of court within 21 days after Defendant filed its motion to dismiss, but she similarly
chose to stand on her pleadings.
Because Plaintiff continues to maintain that her defamation claim as currently pleaded is
sufficient and fails to explain how she would cure the deficiencies noted in the motion to dismiss and
Report, despite having had three opportunities to do so—first under Rule 15(a)(2), second in
response to the motion to dismiss, and a third time in her objections to the Report—the court
believes that Plaintiff has stated her “best case” and cannot improve upon or supplement the
allegations as pleaded. See Schiller, 342 F.3d at 567; Jacquez v. Procunier, 801 F.2d 789, 790 (5th
Cir. 1986) (reversing denial of motion to dismiss because the “plaintiff’s pleadings allege only
conclusions and fail to state a cause of action against any defendant, and . . . plaintiff stands on those
pleadings . . . without suggesting any specificity that could be added to the claim if allowed to
replead.”). The court, therefore, concludes that any attempt by Plaintiff to amend her pleadings
would be futile and unnecessarily delay the resolution of this action.
Accordingly, the court grants Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc.
7), overrules Plaintiff’s objections, denies Plaintiff’s request to amend her pleadings, and dismisses
with prejudice Plaintiff’s defamation claim and this action pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

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It is so ordered this 13th day of February, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

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