United States District Court, W.D. Tennessee, Western Division
MESHA D. TAYLOR, Plaintiff,
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
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”). The instant motions have been referred to
the United States Magistrate Judge. 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
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).
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.).
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.
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).
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).
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.
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
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).
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