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Taylor v. Wal-Mart

United States District Court, W.D. Tennessee, Western Division

May 17, 2018

MESHA D. TAYLOR, Plaintiff,
v.
WAL-MART, Defendant.

          ORDER CORRECTING DOCKET REPORT AND RECOMMENDATION ON PLAINTIFF'S SECOND MOTION FOR LEAVE TO AMEND COMPLAINT, DEFENDANT'S MOTION TO DISMISS, AND PLAINTIFF'S THIRD MOTION FOR LEAVE TO AMEND COMPLAINT

          CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

         Before the Court are the following motions: Plaintiff's Second Motion for Leave to Amend Complaint (Docket Entry (“D.E.” #29) (“Second Motion to Amend”); Defendant's Motion to Dismiss (D.E. #31 & #32); and, Plaintiff's Third Motion for Leave to Amend Complaint (D.E. #35) (“Third Motion to Amend”).[1] The instant motions have been referred to the United States Magistrate Judge.[2] For the reasons set forth herein, it is RECOMMENDED that Plaintiff's Second Motion to Amend be DENIED, that Plaintiff's Third Motion to Amend be DENIED, and that Defendant's Motion to Dismiss be GRANTED.

         I. Introduction

         On June 5, 2017, Plaintiff Mesha D. Taylor filed a pro se Complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging discrimination on the basis of race and sex as well as unlawful retaliation. (D.E. #1). Specifically, Plaintiff alleges that she was denied a promotion, that her co-workers failed to provide her with proper support with her duties, that she was “[p]ut under surveillance, ” that the company policies, such as the “open door policy, ” were unfair and unjust, and that she suffered slander, intimidation, and harassment. (Compl. ¶ 8). Plaintiff alleges that the discriminatory acts occurred in November 2015 and that the discriminatory practice continued from December 15, 2015 until June 23, 2016. (Compl. ¶ 5). Plaintiff filed charges with the Tennessee Human Rights Commission (“THRC”) on December 15, 2015, which she later amended on January 14, 2016. (Compl. ¶ 6 & Exh. 1). Plaintiff also filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) (Charge No. 25A-2016-00158), and a right-to-sue letter was issued on March 3, 2017. (Compl. ¶ 6 & Exh. 2; Def's Mot. to Dismiss at Exh. A, filed at D.E. #32).

         On March 12, 2018, Plaintiff filed her Second Motion to Amend pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. (D.E. #29). Plaintiff's Second Motion to Amend seeks to add her husband, Michael Taylor, as a co-plaintiff and seeks to correct the name of Defendant to “Wal-Mart Store East, LP.” (Compl. ¶ 1). Plaintiff additionally seeks to add further factual basis for her discrimination claims (Compl. ¶ 4), a claim of “whistleblowing retaliation” under the Occupational Safety Hazards Act (“OSHA”) (Compl. ¶ 25), and additional damages for personal injury, “[f]right and shock, ” “[m]ental suffering, ” medical expenses, diminished capacity, and for Michael Taylor's “loss of society, service, and consortium” of his wife (Id.).

         On March 21, 2018, Defendant filed its Motion to Dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. It stated that “Wal-Mart Stores East, LP, ” is the correct operating entity and correct defendant and requested, consistent with Plaintiff's Second Motion to Amend, that the pleadings be amended to reflect as such. Defendant further asserted that the Court should dismiss Plaintiff's lawsuit in its entirety because Plaintiff failed to timely bring her claims pursuant to 42 U.S.C. § 2000e-5(f)(1). Specifically, Defendants assert that Plaintiff's Complaint was not filed within ninety days after she received her EEOC right-to-sue letter. On March 22, 2018, Defendant responded to Plaintiff's Second Motion to Amend asserting that she did not comply with the Local Rules by failing to consult with Defendant prior to filing her motion and that her proposed amendments are also futile. (D.E. #33).

         On March 29, 2018, Plaintiff filed her Third Motion to Amend Complaint. (D.E. #35). Although it is difficult to discern the specific amendments Plaintiff seeks to make to “clarify” her claims of unlawful discrimination, she states that she seeks to “omit[] the claim of personal injury” “remov[e] her husband” from the proposed amendments made in the Second Motion to Amend. (Pl.'s Third Mot. to Amend at 5). She also again seeks to “make sure the proper entity is sued” by naming Defendant as Wal-Mart Stores East, LC. (Pl.'s Third Mot. to Amend. at 5). Plaintiff also filed a “Response” to Defendant's Motion to Dismiss that contains the same verbatim arguments made in her Third Motion to Amend. (See D.E. #34 & D.E. #35 1-6).

         On April 12, 2018, Defendant filed its Reply to Plaintiff's purported Response to its Motion to Dismiss. (D.E. #39). Defendant asserts that Plaintiff's filing did not contest the grounds it raised for dismissal-namely, that she did not timely file her Complaint. Thus, Defendant's argue that Plaintiff has waived the issue. Defendant also filed its Response in Opposition to Plaintiff's Third Motion to Amend, which asserts that she has still not complied with the Local Rules by failing to consult with Defendant prior to the filing of the motion and that the proposed amendments are futile. (D.E. #40).

         II. Proposed Analysis

         As a threshold matter, the parties agree that the proper defendant in the case is “Wal-Mart Stores East, LP.” Thus, the Clerk of Court is directed to correct the docket to properly reflect Defendant's name.

         Next, the Court will address Plaintiff's Second Motion to Amend and Third Motion to Amend in order to determine the operative pleading in the case. Both Plaintiff's Second Motion to Amend and Third Motion to Amend, which she filed pursuant to Rule 15 of the Federal Rules of Civil Procedure, were required to contain a certificate of consultation in accordance with Local Rule 7.2(a)(1)(B), which provides as follows:

All motions, including discovery motions but not including motions pursuant to Fed.R.Civ.P. 12, 56, 59 and 60, shall be accompanied by a certificate of counsel affirming that, after consultation between the parties to the controversy, they are unable to reach an accord as to all issues or that all other parties are in agreement with the action requested by the motion. Failure to attach an accompanying certificate may be deemed good grounds for denying the motion.

(Local Rule 7.2(a)(1)(B)). This Court routinely denies motions when pro se litigants fail to file the certificate of consultation. See, e.g., Jason Sherwood v. Derrick Schofield, No. 2:12-cv-02742-JDT-cgc, 2015 WL 1345241, at *2 (W.D. Tenn. Mar. 23, 2015); Kevin Lee Carnett v. PNC Mortgage, No. 1:12-cv-01081-JDB-egb, 2013 WL 12147018, at *1-*2 (W.D. Tenn. Mar. 8, 2013); Vernon Hayes Watson v. Piccadilly Restaurants, LLC, No. 2:11-cv-02642-STA-cgc, 2012 WL 2681819, at *2 (W.D. Tenn. July 6, 2012); Julia Greer v. Home Realty Co. of Memphis, Inc., No. 2:07-cv-02639-SHM-egb, at *1-*2 (W.D. Tenn. July 12, 2010).

         Plaintiff's Second Motion to Amend did not contain a certificate of consultation. Plaintiff's Third Motion to Amend did contain a certificate of consultation that stated that she “conferred with Defendant's counsel” on March 2, 2018 and that “Defendant did not oppose the relief sought by Plaintiff through the instant motion”; however, Defendant states that Plaintiff did not consult with its counsel on March 2, 2018 or on any other occasion. It appears that the only plausible reason that Plaintiff referred to this date is because the Court entered a text entry on the docket on that date regarding another pending motion and stated that that motion was “unopposed” by Defendant. (D.E. #28). Even if this ...


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