AMES v. HUTCHINSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

XENA AMES, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-04282-JRS-MPB

)

BARBARA HUTCHINSON, )

DAVID MURTLAND, )

TAMYKA DICKERSON, )

BILLIE PATTON, )

JOCELYN MILLER, )

FEDEX, )

)

Defendants. )

Entry and Order

Plaintiff Xena Ames brings claims for race, color, sex, age, gender, and disability

discrimination and retaliation against FedEx and various FedEx employees under

Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities

Act of 1990 ("ADA"), and the Age Discrimination in Employment Act of 1967

("ADEA"). Ames's Third Amended Complaint names the following defendants:

FedEx, David Murtland, Tamika Dickerson, Jocelyn Miller, Barbara Hutchinson, and

Billie Patton. Defendants FedEx, Hutchinson, Murtland, and Patton (collectively,

the "Defendants") move to dismiss Ames's Third Amended Complaint under Federal

Rule of Civil Procedure 12(b)(6).

For the following reasons: (1) Ames's Motion to Withdraw Amended Complaint,

(ECF No. 24), is granted; (2) Defendants' Motion to Dismiss, (ECF No. 27), is

granted; (3) Ames's request to send a personal letter to the Court, (ECF No. 29), is

denied; (4) Ames's Petition to "Expedite Trial," (ECF No. 30), is denied; and Ames's

Motion for Settlement Conference, (ECF No. 31), is denied.

I. Legal Standard

To survive a motion to dismiss for failure to state a claim, a plaintiff must allege

"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). In considering a Rule 12(b)(6) motion to dismiss,

the Court takes the complaint's factual allegations as true and draws all reasonable

inferences in the plaintiff's favor. Orgone Capital III, LLC v. Daubenspeck, 912 F.3d

1039, 1044 (7th Cir. 2019). The Court need not "accept as true a legal conclusion

couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Addi-

tionally, the plaintiff must respond meaningfully to the motion to dismiss, clearly

establishing the legal basis for its claim, in order to stave off dismissal. See Kirksey

v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1043 (7th Cir. 1999). A “document filed

pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks

omitted).1

"[I]f a plaintiff pleads facts that show [her] suit [is] barred . . . [she] may plead

[herself] out of court under a Rule 12(b)(6) analysis." Orgone Capital, 912 F.3d at

1 Counsel entered an appearance on Ames's behalf in January 2021. However, Ames's fil-

ings discussed in this Entry were filed without the assistance of counsel, that is, pro se.

Thus, the more liberal construction is afforded her Third Amended Complaint.

1044 (quoting Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.

1995)); see also Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (quoting Ham-

ilton v. O'Leary, 976 F.2d 341, 343 (7th Cir. 1992)) (on a motion to dismiss "district

courts are free to consider 'any facts set forth in the complaint that undermine the

plaintiff's claim'"). "When a complaint fails to state a claim for relief, the plaintiff

should ordinarily be given an opportunity . . . to amend the complaint to correct the

problem if possible." Bogie, 705 F.3d at 608. Nonetheless, leave to amend need not

be given if the amended pleading would be futile. Id.; see also Foman v. Davis, 371

U.S. 178, 182 (1962).

II. Discussion

The facts in this case are set out in the Court's Order Granting Motion to Dismiss.

(See ECF No. 20 at 2–3.) Brief elaboration of the procedural background in this action

is in order, though, because Ames's claims have shifted in nature and scope through-

out these proceedings. In commencing this action, Ames filed a pro se form Complaint

for Employment Discrimination (ECF No. 1) along with a Civil Cover Sheet (ECF No.

1-1) (checking the "ADA" basis of jurisdiction box, the "Retaliation" discriminatory

conduct box, and the "race, color, gender/sex" discrimination bases boxes without fur-

ther elaboration) , a "Complaint for Employment Discrimination," which added the

ADEA, provided a listing of claims, and included a narrative of her complaints

against the Defendants (ECF No. 1-2), an Equal Employment Opportunity Commis-

sion ("EEOC") Dismissal and Notice of Rights letter (ECF No. 1-3), a FedEx letter

denying her worker's compensation claim (ECF No. 1-4), and an EEOC Charge of

Discrimination (ECF No. 1-5), checking the "race" and "retaliation boxes and provid-

ing a brief recitation. She has since filed four separate documents, (ECF Nos. 5, 7,

21, and 22), each styled as "Amendment to My Complaint," in the same narrative

style as ECF No. 1-2, and each containing a different listing of the parties being sued.

Defendant listings not only differ between each of these complaints, but also within

each individual complaint itself (e.g., between the defendant listings in the caption,

the separate listing of defendants, and the allegations against each defendant). The

most recent filings (ECF Nos. 21 and 22) came after the Court had allowed claims to

proceed against certain defendants proceeding pro se and not a party to that prior

Motion to Dismiss, (ECF No. 14), had dismissed the claims against Defendants

Hutchinson, Murtland and Patton with prejudice, and had dismissed the claims

against FedEx without prejudice, granting Ames leave to amend her Second

Amended Complaint, (ECF No. 7), accordingly. (ECF No. 20 at 11.) Ames did so,

having now filed her Third Amended Complaint, (ECF No. 21), and her Fourth

Amended Complaint, (ECF No. 22). The Court now grants Plaintiff's Motion to With-

draw Amended Complaint. (ECF No. 24.) Thus the Fourth Amended Complaint,

(ECF No. 22), has now been withdrawn and because an amended complaint com-

pletely replaces the prior operative complaint, see Beal v. Beller, 847 F.3d 897, 901

(7th Cir. 2017) ("For pleading purposes, once an amended complaint is filed, the orig-

inal complaint drops out of the picture."), the Third Amended Complaint, (ECF No.

21), is the operative Complaint in this case. Defendants now move to dismiss Ames's

Third Amended Complaint (the "Complaint'), (ECF No. 21), for failure to state a

claim. (ECF No. 27.)

Defendants argue that the Court should dismiss this action because (1) this Court

previously dismissed Ames's claims against Hutchinson, Murtland, and Patton with

prejudice and Ames may not resurrect them in her amended pleading; (2) Ames's age,

sex, color, gender, and disability discrimination claims exceed the scope of her EEOC

charge of discrimination; and (3) Ames's Complaint fails to state a claim for any cause

of action, even under the most liberal reading. (ECF No. 28 at 2.) The Court ad-

dresses these arguments in order.

A. Claims Against Hutchinson, Murtland, and Patton

Ames's Complaint realleges Title VII and ADA claims against Hutchinson, Murt-

land, and Patton (collectively, the "Individual Defendants"), and, for the first time,

alleges ADEA claims against them. Defendants assert that because this Court pre-

viously dismissed Ames's claims against the Individual Defendants with prejudice,

Ames was barred from bringing those same claims in her amended pleading. As the

Court previously held, (Order, ECF No. 20 at 9), Ames cannot pursue Title VII and

ADA claims against the Individual Defendants. See EEOC v. AIC Sec. Investigations,

Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995) (ADA); Williams v. Banning, 72 F.3d 552,

554–55 (7th Cir. 1995) (Title VII). Similarly, Ames cannot bring ADEA claims

against the Individual Defendants, because "there is no individual liability under the

[ADEA]." Anderson v. Ctrs. for New Horizons, Inc., 891 F. Supp. 2d 956, 959 (N.D.

Ill. 2012); see also Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602,

610 n.2 (7th Cir. 2004) ("[W]e have suggested that there is no individual liability un-

der the ADEA."); Csoka v. U. S. Gov't, No. 94-1204, 1996 WL 467654, at *5 94 F.3d

647 (7th Cir. 1996) (unpublished table decision) ("The ADEA, like Title VII, does not

authorize individual liability claims . . . ."). Indeed, it has long been the case that

"'[c]ourts routinely apply arguments regarding individual liability to all three stat-

utes [the ADA, the ADEA and Title VII] interchangeably.'" Banning, 72 F.3d at 553–

54 (quoting AIC Sec. Investigations, 55 F.3d at 1280). Accordingly, Ames's federal

claims against Hutchinson, Murtland, and Patton are dismissed with prejudice.

Additionally, although Defendants Jocelyn Miller and Tamika Dickerson have not

joined in the motion to dismiss, Ames's claims against them are likewise dismissed

with prejudice because Ames's Title VII, ADA, and ADEA claims against them are

also noncognizable individual liability claims.

B. Claims Against FedEx

Turning to the remaining claims asserted against FedEx in the Complaint, De-

fendants next argue that Ames's age, sex, color, gender, and disability discrimination

claims exceed the scope of her EEOC charge of discrimination. Generally, a plaintiff

cannot bring claims under Title VII that were not originally included in the charges

made to the EEOC, except for claims that are "like or reasonably related to the EEOC

charge and can be reasonably expected to grow out of an EEOC investigation of the

charges." Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir. 2003). "The

charge and the complaint may be reasonably related if, 'at a minimum,' they 'describe

the same circumstances and participants.'" Cervantes v. Ardagh Grp., 914 F.3d 560,

565 (7th Cir. 2019) (quoting Conner v. Ill. Dep't of Nat. Res., 413 F.3d 675, 680 (7th

Cir. 2005)).

In her EEOC Charge, Ames checked the boxes for discrimination based on "race"

and "retaliation" as the only bases of her discrimination claims against FedEx. She

also omitted any mention of these bases anywhere else on the form, including in the

"Particulars" section. although she did allege that she was retaliated against for filing

an internal complaint of discrimination against Hutchinson. (EEOC Charge, ECF

No. 1-5.) Ames explained that Hutchinson told a co-worker: "she did not like her

boyfriend dating African American women" such as Ames. (Id.) A few days after

Ames filed a complaint based on this incident, she was written up by Patton, a close

friend of Hutchinson, for running stop signs on company property. (Id.)

Having previously failed to provide the Court with a sufficient factual basis to

determine if Ames's sex and disability discrimination claims were "reasonably re-

lated" to her race and retaliation claims, the Court dismissed those claims without

prejudice. (Order, ECF No. 20 at 11.) But Ames, again, fails to provide in her Com-

plaint a basis for which she believes she was discriminated against on account of her

sex. As for her disability, which remains undisclosed, Ames merely realleges that the

Individual Defendants obtained her medical records and used that information to

"abuse [her] mentally and physically due to [her] disability." (3d Am. Compl., ECF

No. 21 at 15.) This is insufficient to provide the required nexus, failing, for example,

to set forth the specific conduct, time frame, and participants of the alleged sex and

disability discrimination as previously ordered. (See Order, ECF No. 20 at 11 ("In

amending her complaint, Ames must set forth the specific conduct, time frame, and

participants of the alleged sex and disability discrimination.")).

Ames's Complaint also fails to provide a basis for which she believes she was dis-

criminated against on account of her gender or color. Likewise, Ames does not pro-

vide a sufficient factual basis to support her newly alleged claim that she was dis-

criminated against on account of her age, which is not even set forth in the pleadings.

Because Ames does not provide the Court with a sufficient factual basis to deter-

mine if her age, sex, color, gender and disability discrimination claims are "reasona-

bly related" to her race and retaliation claims, Ames's age, sex, color, gender and

disability discrimination claims are dismissed with prejudice.

Not only is the Complaint devoid of a factual basis setting forth the specific con-

duct, dates, and participants of the alleged discrimination to allow the Court to find

any of the alleged discrimination was "reasonably related" to the EEOC charge and

thus within the scope of its race and retaliation charges, as noted above, but the Com-

plaint lacks the basic elements of a prima facie claim for any plausible discrimination

allegations, whether within the scope of the EEOC charge or not, under Title VII, the

ADA, or the ADEA. See Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir.

2014) (court must determine whether plaintiff's complaint "state[s] a claim to relief

that is plausible on its face") (quoting Twombly, 550 U.S. at 570). For example, Ames

does not plead: that she was over 40 years old (although this is discernable from the

EEOC Charge of Discrimination, which was attached to the original complaint (see

Hecker v. Deere & Co., 556 F.3d 575, 582–83 (7th Cir. 2009) (court may consider ex-

hibit referenced in complaint and central to plaintiff's claims when ruling on motion

to dismiss)), but which does not plausibly provide notice of any material adverse em-

ployment action), or disclose her disability, that her job performance met FedEx's

legitimate expectations, that she suffered an adverse employment action, or that she

was treated less favorably than another similarly situated employee not in the pro-

tected class (e.g., a white, male, non-disabled, younger person). See LaRiviere v. Bd.

of Trs. of S. Ill. Univ., 926 F.3d 356, 360 (7th Cir. 2019) (citing McKinney v. Office of

Sheriff of Whitley Cnty., 866 F.3d 803, 807 (7th Cir. 2017)); Horwitz, 260 F.3d at 610.

The Complaint still does not plead facts plausibly entitling Ames to relief. At the

pleading stage, "the point [of notice] is that it is necessary to give the defendants no-

tice of the claims against them, not that giving the defendants notice is sufficient to

state a claim." Adams, 742 F.3d at 729 (emphasis in original); see also Erickson, 551

U.S. at 27 ("Specific facts are not necessary; the statement need only 'give the defend-

ant fair notice of what the . . . claim is and the grounds upon which it rests.'"); Air-

borne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)

("Taking Erickson and Twombly, together, we understand the [Supreme] Court to be

saying only that at some point the factual detail in a complaint may be so sketchy

that the complaint does not provide the type of notice of the claim to which the de-

fendant is entitled under Rule 8."). Here, Ames's Complaint, beyond merely listing

by name a litany of her claims under a section entitled "Statement of Claim," fails to

include a "short plain statement" of each such claim under the narrative "Facts of My

Case," in general or in specific as it relates to each Defendant, or to FedEx at all,

under the subsection entitled "Defendants." Rather, the Complaint's narrative re-

lates to her complaints against the individual Defendants, which themselves are not

liable, and some of which happened to be co-workers, while some were not. Also,

simply listing a number of claims in her Complaint, or merely checking wholly un-

contextualized checkboxes on a pro se complaint form—or as will be taken up next,

including with the original filing an EEOC Charge form also with uncontextualized

checkboxes checked alleging race discrimination or retaliation—without naming a

single fact plausibly to support the list or checked boxes, is insufficient to state a

claim.

C. Ames's Remaining Claims Against Defendants

Defendants assert that Ames fails to provide "even the most basic facts supporting

her claims," (ECF No. 28 at 5), and that her remaining claims should therefore be

dismissed. The Court agrees with Defendants for the following reasons.

1. Title VII Race Discrimination Claim

Ames fails to allege enough facts to state a plausible claim against Defendants for

race discrimination. Under Title VII, an employer may not discriminate based on

"race, color, religion, sex, or national origin." 42 U.S.C. § 2000e–2(a). To succeed on

a Title VII claim, the plaintiff-employee must prove three elements:

[1] [s]he is a member of a class protected by the statute, [2] that [s]he has

been the subject of some form of adverse employment action (or that [s]he

has been subjected to a hostile work environment), and [3] that the em-

ployer took this adverse action on account of the plaintiff's membership in

the protected class.

Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018) (quoting Morgan v. SVT, LLC,

724 F.3d 990, 995 (7th Cir. 2013)). "The legal standard used to evaluate a discrimi-

nation claim 'is simply whether the evidence,' considered as a whole, 'would permit a

reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or

other proscribed factor caused the discharge or other adverse employment action.'"

Id. (quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). "While

[a court] may use the familiar burden-shifting approach articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), as 'a means of organizing, presenting,

and assessing circumstantial evidence in frequently recurring factual patterns found

in discrimination cases,' it is 'not the only way to assess circumstantial evidence of

discrimination.'" Id. (quoting David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846

F.3d 216, 224 (7th Cir. 2017)).

Here, Ames pleaded sufficient factual detail to show that the first element of a

Title VII claim can be met. Ames is a member of a class protected by Title VII because

she is African American.2 However, Ames's complaint fails to allege that the second

element of a Title VII claim can be met; namely: "Adverse action must be material."

Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 885 (7th Cir. 1998). "[N]ot every-

thing that makes an employee unhappy is an actionable adverse action. Otherwise,

minor and even trivial employment actions that 'an irritable, chip-on-the-shoulder

employee did not like would form the basis of a discrimination suit.'" Smart v. Ball

2 As required, Ames has properly exhausted her administrative remedies as to her race and

retaliation claims. See Hill v. Potter, 352 F.3d 1142, 1145 (7th Cir. 2003) ("Title VII does not

authorize the filing of suit until the plaintiff has exhausted [her] administrative remedies

. . . .") (citing 42 U.S.C. § 2000e–16(c))).

State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting Williams v. Bristol–Myers

Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). "To be actionable, there must be a

'significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a sig-

nificant change in benefits.'" Stutler v. Ill. Dep't of Corrections, 263 F.3d 698, 703

(7th Cir. 2001) (quoting Bell v. EPA, 232 F.3d 546, 555 (7th Cir. 2000)). Here, Ames

alleges that she received three negative performance "write-ups." (3d Am. Compl.,

ECF No. 21 at 41–42.) However, Ames concedes that all three write-ups were for

safety violations, (see id.), and these three write-ups do not constitute a significant

change in employment status, see Stutler, 263 F.3d at 703; i.e., they are not material.

Moreover, Ames fails to allege any material action that would constitute an adverse

action.

Even if Ames had alleged an adverse action, though, she fails to allege factual

detail to show that the third element of a Title VII claim can be met. Ames has not

alleged that FedEx took an adverse action against her on account of her being African

American. Indeed, even if there were an adverse action in this case, drawing all rea-

sonable inferences in Ames's favor, no reasonable factfinder could "conclude that the

plaintiff's race . . . caused [an] . . . adverse employment action." Ortiz, 834 F.3d at

765. Thus, for any one of the above reasons, Ames's Title VII race discrimination

claim against Defendants is dismissed with prejudice.

2. Retaliation Claim

Ames fails to allege enough facts to state a plausible claim against Defendants for

retaliation. "To establish a prima facie case of retaliation under Title VII, [a plaintiff]

must show: (1) [she] engaged in a statutorily protected activity, (2) [her] employer

took a materially adverse action against [her], and (3) there is a causal link between

the protected activity and the adverse action." Mollet v. City of Greenfield, 926 F.3d

894, 896 (7th Cir. 2019).

Here, Ames pleaded enough factual detail to show that the first element of a re-

taliation claim can be met because she filed an EEOC complaint and alleges that she

"informed Hr [sic] (Valerie Westell) that [she] served Barbara [Hutchinson] with a

cease and desist letter and [she] wanted her activity to stop." (3d Am. Compl., ECF

No 21 at 21.) Although Ames does not specify whether she formally complained to

Human Resources, "an informal complaint may constitute protected activity for the

purposes of retaliation claims." Casna v. City of Loves Park, 574 F.3d 420, 427 (7th

Cir. 2009).

However, Ames fails to allege sufficient factual detail to show that the second el-

ement can be met. Ames alleges that the cause of the retaliation was due to

Hutchinson "using her management connections to have her friends give [Ames]

write-ups so that [she] could get fired." (3d Am. Compl., ECF No. 21 at 40.) In the

EEOC Charge, Ames explained that Hutchinson told a co-worker: "she did not like

her boyfriend dating African American women" such as Ames. (EEOC Charge, ECF

No. 1-5.) A few days after Ames filed a complaint based on this incident, she was

written up by Patton, a close friend of Hutchinson, for running stop signs on company

property. (Id.; see also 3d Am. Compl., ECF No. 21 at 41.) Ames also alleges that she

was written-up for a second safety violation─again, for running through a stop sign.

(ECF No. 21 at 41.) The third safety-violation write-up was for not wearing hearing

protection. (Id. at 42.) Ames also alleges retaliation in that "management" was re-

quested to write letters and videotape her, including a letter to cover up Hutchinson's

alleged actions in "physically scarring" Ames. (Id.) These facts do not plausibly allege

a materially adverse employment action because there was no significant change in

employment status. See Stutler, 263 F.3d at 703. And a write-up or letter, just like

a negative performance evaluation, "does not in itself constitute an adverse employ-

ment action." Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 739 (7th Cir. 2006).

Even assuming that the alleged actions were materially adverse, Ames fails to

offer any factual detail or otherwise show any connection between the protective ac-

tivity and those actions. Instead, Ames offers mere conclusory allegations of why

Defendants retaliated against her. For example, she states that: "The manager that

wrote you up is right and you're wrong, and that's why retaliation is prevalent in the

workplace." (3d Am. Compl., ECF No. 21 at 27.) But, as noted, Ames cannot even

point to any material action that qualifies as an adverse action in this case.

Because she does not plausibly allege that FedEx took an adverse action against

her, she cannot show that there is a "causal link between the protected activity and

the adverse action." Mollet, 926 F.3d at 896. Thus, Ames's retaliation claim against

Defendants is dismissed with prejudice.

3. Health Insurance Portability and Accountability Act (HIPAA) Claim

Ames seeks relief for alleged violations of the Health Insurance Portability and

Accountability Act ("HIPAA"), 42 U.S.C. §§ 1320d-1 to d-7. (3d Am. Compl., ECF No.

21 at 6, 15, 17-18, 32, and 44.) While the parties have not addressed this matter in

their briefing, the Court need not delve into whether or not any violations have

properly been pleaded or even occurred because "HIPPA confers no private right of

action." Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019). In other

words, "HIPAA does not confer individual enforcement rights—express or implied."

Id. Instead, "[m]edical professionals . . . are bound by the statute's disclosure prohi-

bitions and confidentiality requirements." And enforcement is up to "the Department

of Health and Human Services, not to private plaintiffs," id., even those like Ames

who allege harm from disclosure of their sensitive medical information.

This same infirmity would apply to any such allegations against non-moving de-

fendants Dickerson (see, e.g., 3d Am. Compl., ECF No. 21 at 33, 44), and Miller (see,

e.g., 3d Am. Compl., ECF No. 21 at 36, 39, 44). Therefore, the HIPPA claims against

all Defendants are dismissed with prejudice for failure to state a claim upon which

relief may be granted.

4. Computer Misuse

Initially, the Court notes that "it is [not] the proper function of the district court

to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991); see also Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges

have no obligation to act as counsel or paralegal to pro se litigants."). However, the

Complaint contains some scattershot allegations that, when construed broadly could

appear to invoke federal question jurisdiction. For example, the Complaint alleges

"intrusion" and "hacking" into her e-mail accounts, (3d Am. Compl., ECF No. 21 at

24), "retrieving" information from her phone, (id. at 25), "cyberbullying" through "ac-

cess" to her "internet and phone lines," (id. at 27), "using computers and phone sys-

tems to harass" her, (id. at 31), and "watching me in my home, scanning phone calls,

and computer access," (id. at 32). Similar allegations are made against non-moving

defendant Miller. (3d Am. Compl., ECF No. 21 at 33 ("Cyberbullying - using internet

sources to watch me in my home"), 37 (having non-defendant "add devices in my home

that allow[ ] unwanted surveillance through my TV and Listening devices"), 38 ("sur-

veillance," "Stealing funds from my Paypal account and monies from Chase Bank,"

and "Hacking into my email account and exposing personal information).) Though

any specific allegations in this regard appear to be missing with respect to FedEx and

Patton, the relief section sets forth generally "Hacking into an Email account, and

exposing information that's private and personal," (3d Am. Compl., ECF No. 21 at

46), without specifying any particular party. Again, the parties have not specifically

addressed these allegations in their briefing.

While primarily a criminal statute, the Computer Fraud and Abuse Act ("CFAA"),

18 U.S.C. § 1030 et seq. provides for a civil cause of action by "[a]ny person who suffers

damage or loss by reason of a violation of [the CFAA]" if the violation "involves 1 of

the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i)."

Id. § 1030(g). Those factors are: (I) loss during any one-year period of at least $5,000;

(II) modification or impairment or potential modification or impairment of medical

examination, diagnosis, treatment, or care of a person; (III) physical injury to a per-

son; and (IV) threat to public health or safety. Id. § 1030(c)(4)(A)(i). The CFAA pro-

hibits various conduct, including intentionally accessing a "protected computer with-

out authorization and as a result of such conduct, causes damage and loss." Id. §

1030(a)(5)(C). However, the Complaint here, like the prior complaints, contains in-

sufficient factual matter to state a plausible claim for a violation of the CFAA. The

Complaint lacks any factual allegations suggesting how the CFAA may have been

violated. Ames must set forth basic facts about which defendant did what to violate

any of the enumerated factors, and about any damage or loss due to any such viola-

tion. See Fed. R. Civ. P. 8(a). Mere conclusory allegations such as "computer misuse"

"cyberbullying," or hacking into account" will not do. Twombly, 550 U.S. at 557.

As stated, the Complaint lacks sufficient factual allegations to state a plausible

claim as to a CFAA violation, and any such claims against all Defendants are dis-

missed with prejudice.

D. Remaining Pendent State-Law Claims

Ames raises a plethora of amorphous state law claims—murder; elder abuse; as-

sault; battery; cyberbullying; defamation; embezzlement; wrongful appropriation of

name, likeness, or identity; threats of violence; stalking; baiting; voyeurism; invasion

of privacy; intentional infliction of emotional distress, etc.—against all Defendants.3

The Court has a continuing duty throughout the course of litigation to ensure it has

3 Ames invokes Section 26(b) of the "Indian Telegraph Act," but the Court is unaware of any

such federal statute extant in the United States. The reference to this Act is in connection

with the alleged cyberbullying, which appears to be under the law of the nation of India

(See Indian Telegraph Act, 1885). (ECF No. 21 at 27.)

jurisdiction. The Court need not exercise supplemental jurisdiction over pendent

state-law claims when the basis for original jurisdiction is gone. 28 U.S.C. § 1367.

Here, Ames's Title VII, ADA, and ADEA claims are dismissed with prejudice, as are

her HIPPA claims and any claims under CFAA. Therefore, for the Court to have

jurisdiction over Ames's remaining state-law claims,4 Ames must plead another ba-

sis, such as diversity, for the Court's jurisdiction.

Ames has not properly pleaded that this Court has diversity jurisdiction over her

remaining pendent state-law claims. In order to invoke diversity jurisdiction in a

civil case, the matter must be between citizens of different states and the amount in

controversy must exceed $75,000, exclusive of interest and costs. See 28 U.S.C.

§ 1332. Here, because Ames has not pleaded either the amount in controversy or the

citizenship of any of the Defendants (notably, though, all individual defendants are

listed in the pleadings as having home addresses in Indianapolis, Indiana), the Court

does not have diversity jurisdiction over Ames's remaining claims. Lacking either

federal question or diversity jurisdiction in this case, the Court declines to extend

supplemental jurisdiction over any state law claims, which are therefore dismissed.

For the same reasons, all state law claims against Defendants Jocelyn Miller and

Tamika Dickerson are dismissed.

4 "[J]urisdiction over supplemental claims should be retained even though the federal claims

have dropped out: where the statute of limitations would bar the refiling of the supplemental

claims in state court . . . ; where substantial federal judicial resources have already been

expended on the resolution of the supplemental claims; and where it is obvious how the

claims should be decided." Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir.

2007) (citation omitted). The Court finds that none of the three reasons apply to Plaintiff's

remaining state-law claims. Therefore, Plaintiff needs to properly allege another basis for

this Court's jurisdiction over her remaining pendent state-law claims.

"District courts . . . 'have broad discretion to deny leave to amend where there is

undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue

prejudice to the defendants, or where the amendment would be futile.'" Gonzales-

Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (quoting Arreola v. Godinez, 546

F.3d 788, 796 (7th Cir. 2008)). Ames is not granted leave to amend her complaint to

properly plead this Court's basis for jurisdiction over her remaining pendent state-

law claims because doing so would be futile given that all individual defendants are

citizens of Indiana and Ames does not allege pendent state-law claims against De-

fendant FedEx.

E. Identifying Defendants to the Complaint

As noted, FedEx, Hutchinson, Murtland, and Patton have moved to dismiss the

Complaint. A review of the Complaint, however, could lead to confusion about who

is actually a defendant in this action. The caption identifies those defendants just

named as "Defendant[s]." (ECF No. 21 at 1.) The Complaint continues by specifically

naming "The Parties in This Complaint (Defendants)" as Murtland, Hitchinson, Pat-

ton, Miller, and Dickerson. (Id. at 1–3.) FedEx is omitted from this section of the

Complaint. Nonetheless, the Clerk issued a Summons to FedEx, (see ECF No. 8), and

an appearance by counsel was entered on FedEx's behalf, (ECF No. 13). To add to

potential confusion as to who is a defendant, the beginning of the Complaint includes

a section identifying the following persons after the term "Summons:" Henry Willis,

Dustin Ward, Jornette Malone, Benita Gaskins, James Kilgore, and Anthony Carr.

(Id. at 1.) The Clerk was presented with and Issued a Summons to James Kilgore

and Charles Holmes, (ECF No. 23-2, 23-3), neither of whom is named as a Defendant

in this action. Holmes is an attorney who entered an appearance on FedEx's behalf

in this case. (ECF No. 18.) (No Summons have been issued to Willis, Ward, Malone,

Gaskins, or Carr.) A review of the Complaint discloses that of Willis, Ward, Malone,

Gaskins, Kilgore and Carr, all but Kilgore are actually: (1) named as witnesses to the

allegations made against the named Defendants; (2) were the reason for alleged "re-

venge" by the named Defendants; (3) or both; (4) or, in the case of Ward and Malone,

are not mentioned any further in the Complaint. As for Kilgore, the Complaint al-

leges that he was an accessory to Miller's attempted murder of Ames's mother. (ECF

No. 21.)

To the extent Ames attempts to assert any Title VII, ADA, or ADEA claim against

these other persons, such claims are noncognizable individual liability claims and

should be dismissed. To the extent she attempts to assert a HIPPA claim against

these persons, such claims are dismissed for failure to state a claim. To the extent

she attempts to assert a CFAA claim against these persons, such claims are dismissed

for failure to state a claim. To the extent Ames attempts to assert any state-law

claims against these other persons, the Court lacks subject-matter jurisdiction over

such claims and they are dismissed as well.

III. Remaining Motions

Ames has filed a document entitled, "Timely Response – Belated Response," (ECF

No. 29), in which she has sought "to send a personal letter to the Judge." (ECF No.

29 at 2.) Although not presented in a "motion," her request is denied as moot as

well as being improper ex parte communication. To the extent the document purports

to be a response to Defendants' Motion to Dismiss, it does not respond meaningfully

to the motion. Any arguments that Ames could have made in response to the Motion

to Dismiss have been waived. See, e.g., Ennin v. CNH Indus. Am., LLC, 878 F.3d 590,

595 (7th Cir. 2017) ("failure to respond to an argument generally results in waiver").

Ames has filed a Petition to Expedite Trial, (ECF No. 30), which is denied as

moot because her claims are dismissed. Ames also moves for a Settlement Confer-

ence, (ECF No. 31), which is likewise denied as moot.

Conclusion

For the above reasons, Defendants' Motion to Dismiss, (ECF No. 27), is granted.

Ames's failure to cure any previously identified deficiencies— combined with plead-

ing facts that affirmatively show she is not entitled to certain claims—suggests per-

mitting leave to amend would be futile, so the dismissal of the federal claims against

all Defendants will be with prejudice. All federal claims against the individual

defendants in this case, movants and non-movants alike, are dismissed with prej-

udice. All federal claims against Defendant FedEx are also dismissed with prej-

udice. All pendent state-law claims against all defendants are dismissed without

prejudice, but Plaintiff is not granted leave to amend because doing so would be

futile and because of Plaintiff's repeated failure to cure her deficiencies. See Gonza-

les-Koeneke, 791 F.3d at 807.

Ames's Motion to Withdraw Amended Complaint, (ECF No. 24), is granted.

Ames's Petition to Expedite Trial (ECF No. 30) is denied as moot. Ames's Motion

for Settlement Conference, (ECF No. 31), is also denied as moot. Final judgment

will issue under separate order.

SO ORDERED.

2?

Date: 3/29/2021

JAMES R. SWEENEY I, JUDGE

United States District Court

Southern District of Indiana

Distribution by CM/ECF to all registered counsel of record

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