# Oliver v. Military Department, State of Louisiana

> District Court, M.D. Louisiana · March 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10192609

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** March 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192609

## How later opinions describe it (automated extraction)

- finding that, because plaintiff failed to respond to defendant's argument on an issue, the Court could conclude that a policy exclusion applied (citing, inter alia, JMCB, 336 F. Supp. 3d at 634)

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JESSICA OLIVER CIVIL ACTION

VERSUS 22-356-SDD-RLB

MILITARY DEPARTMENT,
STATE OF LOUISIANA, ET AL.

RULING
This matter is before the Court on the Motion to Dismiss for Failure to State a
Claim1 by the Military Department, State of Louisiana (“Military Department”) and the
Motion to Dismiss for Failure to State a Claim and Pursuant to Rule 12(b)(1)2 by Lt.
Colonel Jackie Manton (“Manton”) in his official capacity, Jeff Landry, in his official
capacity as Attorney General for the State of Louisiana (“the AG”), and State of Louisiana,
Division of Administration, Office of Risk Management (“ORM”)(or collectively “State
Defendants”). Plaintiff, Jessica Oliver (“Plaintiff” or “Oliver”) filed an Opposition to each
motion,3 and Manton, the AG, and ORM filed a Reply.4 Also before the Court is Plaintiff’s
Motion to Strike Answer to Complaint5 by Plaintiff, to which Military Department filed an
Opposition.6 For the following reasons, the Motions by all Defendants shall be granted,
and Plaintiff’s Motion to Strike shall be denied.

1 Rec. Doc. 32.
2 Rec. Doc. 37.
3 Rec. Docs. 39-1, 43.
4 Rec. Doc. 45.
5 Rec. Doc. 42.
6 Rec. Doc. 44.
I. BACKGROUND7
On April 20, 2022, Plaintiff filed the instant lawsuit in Louisiana state court, alleging
“discrimination based on retaliation, disability, and sexual orientation in violation of Title
[VII] of the Civil Rights Act of 1964.”8 Plaintiff alleged she became employed by the Military
Department on December 6, 2020 as an Assistant Commandant of the Job Challenge

Program located at the Gillis W. Long Center.9 However, because the Plaintiff further
alleges that she was informed of an internal investigation on February 20, 2020 and was
ultimately terminated on or about April 28, 2020,10 the Court assumes that the alleged
start date of December 6, 2020 is a typographical error. Plaintiff claims that she was
“victimized of her sexual orientation after acknowledging in conversation to the then
Director of JCP, LTC Jackie Manton on or around February 5, 2020.”11 Plaintiff further
claims that, after his conversation with Manton, “indirectly through co-workers she was
told there was an open investigation relative to favoritism she shown to a female trainee,
including an alleged relationship.”12

On April 21, 2022, the Military Department removed this suit to the United States
District Court for the Eastern District of Louisiana,13 and the matter was subsequently
transferred to this Court.14 On June 30, 2022, Plaintiff filed a Motion for Leave to File

7 The Court notes that Plaintiff’s Complaints and her briefs submitted on these motions contain numerous
spelling and grammatical errors. The Court quotes from Plaintiff’s pleadings and briefs exactly as submitted,
without correction.
8 Rec. Doc. 1-2. Plaintiff alleges these claims fall under Title VIII; the Court assumes this is a typographical
error.
9 Rec. Doc. 1-2, ¶ 6. The Military Department notes: “Plaintiff has named the State of Louisiana National
Guard Youth Program as a defendant, which is not a separate legal entity. The Louisiana National Guard
is part of the Military Department. See La. R.S. 29:1. Therefore, the Military Department includes the
Louisiana National Guard.” Rec. Doc. 32-1, p. 1 fn 1.
10 Rec. Doc. 1-2, ¶¶ 6, 9.
11 Id. at ¶ 7.
12 Id. at ¶ 9.
13 Rec. Doc. 1.
14 Rec. Docs. 10 & 11.
Amended Complaint,15 which the Court granted. In her Amended Supplemental
Complaint,16 Plaintiff added new parties and claims. Plaintiff named as Defendants
Manton, the AG, and the ORM. Plaintiff added claims of violations of the First and
Fourteenth Amendments to the United States Constitution and the Equal Protection
Clause, purportedly under 42 U.S.C. § 1983; employment discrimination claims under the

Louisiana Employment Discrimination Law (“LEDL”), including retaliation, harassment,
hostile work environment, and constructive discharge;17 and a host of other state law
claims, including intentional infliction of emotional distress (“IIED”), negligent infliction of
emotional distress (“NIED”), breach of warranty, breach of contract, misrepresentation,
fraud, negligence, coercion, defamation, and respondeat superior (vicarious liability).
II. Plaintiff’s Amended Supplemental Complaint
All Defendants move to dismiss Plaintiff’s claims; however, there appears to be
confusion as to whether Plaintiff’s Amended Supplemental Complaint is the operative
complaint, replacing and superseding the original complaint, or whether it is supplemental

to the original, and all allegations remain before the Court. Plaintiff maintains that the
Amended Supplemental Complaint is supplemental to the original and is to be read in
conjunction therewith.
Defendants rely on Rule 10(a)(5) of the Local Rules for the Middle District of
Louisiana, which provides:
An amended complaint will supersede any prior filed complaint. Except to
the extent that adoption by reference is permitted under Fed. R. Civ. P.
10(c), an amended complaint shall set forth amended allegations and fully
restate all other allegations against all parties.

15 Rec. Doc. 21.
16 Rec. Doc. 26.
17 La. R.S. 23:301 et seq.
However, Rule 10(c) of the Federal Rules of Civil Procedure states: “A statement in a
pleading may be adopted by reference elsewhere in the same pleading or in any other
pleading or motion.”
In Paragraph XXII of Plaintiff’s Amended Supplemental Complaint, Plaintiff states
that “this amended, supplemental complaint is supplemental to those complaints originally

served and answered by Defendant and would adopt into the prior complaints for
damages as if restated herein.” The Fifth Circuit, in Carroll v. Fort James Corp., held that
the Federal Rules of Civil Procedure allow for incorporation by reference when the
incorporation is done with a degree of specificity which would allow the opposing party to
determine what parts were incorporated.18 In Carroll, the plaintiff’s amended complaint
contained a blanket incorporation clause, similar to the Plaintiff’s herein, and the Court
held it sufficient to satisfy the specificity requirement.19 Thus, Plaintiff’s Amended
Supplemental Complaint meets the exception set forth in Local Rule 10(a)(5), and all
claims in the original and supplemental complaint are before the Court. Nevertheless,

none of Plaintiff’s claims are viable as pled.
III. LAW & ANALYSIS
A. Motion to Strike Amended Complaint
The Military Department filed an Answer to Plaintiff’s original Complaint and
asserted several affirmative defenses to her claims.20 After filing her Amended
Supplemental Complaint, Plaintiff moved to strike the Military Department’s Answer,
arguing its affirmative defenses should be stricken from the record.21

18 Carroll v. Fort James Corp., 470 F.3d 1171, 1176 (5th Cir. 2006).
19 Id.
20 Rec. Doc. 4.
21 Rec. Doc. 42.
Federal Rule of Civil Procedure 12(f) states, “The court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.”22 Motions to strike are generally disfavored and generally require the moving
party to show prejudice.23 The Fifth Circuit has cautioned: “If there is any doubt as to
whether under any contingency the matter may raise an issue, the motion should be

denied.”24
The Court has reviewed the affirmative defenses asserted by the Military
Department and the arguments presented by the Parties. The Court finds that the
affirmative defenses asserted are typical and appropriate given the claims Plaintiff brings.
Plaintiff has offered nothing to demonstrate that the affirmative defenses could not be
supported by developed facts, nor has she shown that the defenses are impossible,
immaterial, scandalous, or any way prejudicial. Plaintiff’s arguments regarding the
affirmative defenses are more appropriately responsive to a motion to dismiss.
In some specific instances, Plaintiff’s arguments are clearly contrary to applicable

law. For example, the Military Department’s Fourth Affirmative Defense states that
Plaintiff’s claims “were filed in the improper state venue and were not timely served upon
the Military Department in violation of 42 U.S.C. § 2000e-5(f)(1) and Louisiana Civil Code
article 3426. Thus, although removal to this Court was proper pursuant to 28 U.S.C. §
1441(a), this Court is not a proper venue under 28 U.S.C. § 1391(b).”25 Plaintiff moves
to strike this defense as moot because the Military Department removed the matter to
federal court. However, as the Military Department counters, “[a] party who removes an

22 Fed. R. Civ. Pro. 12(f).
23 Barnes v. Vanoy, No. CV 19-764-JWD-RLB, 2020 WL 8513200, at *1 (M.D. La. Dec. 2, 2020).
24 Pan Am. Life Ins. Co. v. Blanco, 311 F.2d 424 (5th Cir. 1962), n 13.
25 Rec. Doc. 44, p. 7.
action from state to federal court does not, in so doing, waive the defense of improper
venue as to the underlying state court action.”26
Plaintiff has failed to carry her burden to demonstrate that the affirmative defenses
asserted by the Military Department should be stricken under Rule 12(f); therefore, the
Motion to Strike Answer to Complaint27 is DENIED.

B. Motion to Dismiss under Rule 12(b)(1)
“When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other
Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.’”28 If a complaint could be dismissed for both lack
of jurisdiction and for failure to state a claim, “‘the court should dismiss only on the
jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state
a claim under [Rule] 12(b)(6).’”29 The reason for this rule is to preclude courts from issuing
advisory opinions and barring courts without jurisdiction “‘from prematurely dismissing a
case with prejudice.’”30

C. Motion to Dismiss under Rule 12(b)(6)
When deciding 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.’”31 The court
may consider “the complaint, its proper attachments, documents incorporated into the

26 Burks v. Aloca, Inc., No. Civ.A.01-3738, 2002 WL 32859, at *2 (E.D. La. Jan. 9, 2002).
27 Rec. Doc. 42.
28 Crenshaw–Logal v. City of Abilene, Texas, 436 Fed.Appx. 306, 308 (5th Cir. 2011)(quoting Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011); Fed. R .Civ. P. 12(h)(3)).
29 Id. at 308 (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977)).
30 Id. (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210
(1998); Ramming, 281 F.3d at 161).
31 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
complaint by reference, and matter of which a court may take judicial notice.”32 “To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim
to relief that is plausible on its face.’”33 In Bell Atlantic Corp. v. Twombley, the United
States Supreme Court set forth the basic criteria necessary for a complaint to survive a
Rule 12(b)(6) motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion

to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.”34 A complaint is also
insufficient if it merely “tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’”35 However, “[a] claim has facial plausibility when the plaintiff pleads the
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”36 In order to satisfy the plausibility standard, the
plaintiff must show “more than a sheer possibility that the defendant has acted
unlawfully.”37 “Furthermore, while the court must accept well-pleaded facts as true, it will
not ‘strain to find inferences favorable to the plaintiff.’”38 On a motion to dismiss, courts

“are not bound to accept as true a legal conclusion couched as a factual allegation.”39
Rather, the inquiry is whether the allegations in the complaint plausibly state a claim for
relief.

32 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
33 In re Katrina Canal Breaches Litigation, 495 F.3d at 205.
34 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
[hereinafter Twombly].
35 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
[hereinafter Iqbal].
36 Twombly, 550 U.S. at 556.
37 Iqbal, 556 U.S. at 678.
38 Taha v. William Marsh Rice University, No. 11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012)
(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
39 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
D. Sovereign Immunity
All Defendants assert the defense of sovereign immunity as to Plaintiff’s Section
1983 constitutional claims. It is undisputed that the Military Department is part of the
executive branch of the State of Louisiana.40 The ORM is also an arm of the State, and
AG Landry and Manton have been sued in their official capacities only; thus, these

Defendants also move for dismissal of these claims based on sovereign immunity.
Plaintiff has failed to address this argument in either Opposition, focusing instead on
standing, supplemental jurisdiction over state law claims, and qualified immunity – none
of which are at issue in the pending motions to dismiss, nor are they responsive to the
defense of sovereign immunity. Further, these Defendants are entitled to dismissal of
Plaintiff’s federal constitutional claims as a matter of law. As explained by another section
of this Court in White Hat v. Landry:
“The Eleventh Amendment bars a suit against state officials when the state
is the real, substantial party in interest. Thus, [t]he general rule is that relief
sought nominally against an officer is in fact against the sovereign if the
decree would operate against the latter.” Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 908, 79 L.Ed.2d 67 (1984).
(citations and quotations omitted). Accordingly, “[t]he Eleventh Amendment
bars claims against a state brought pursuant to 42 U.S.C. § 1983.” Aguilar
v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998)
(citing Farias v. Bexar Cty. Bd. of Trustees for Mental Health Mental
Retardation Servs., 925 F.2d 866, 875 n.9 (5th Cir. 1991)). “Section 1983
does not waive the states’ sovereign immunity[.]” Id. (citing Quern v. Jordan,
440 U.S. 332, 338 n.7, 99 S. Ct. 1139, 59 L.Ed. 2d 358 (1979)).41

However, it is also “an established principle of law that generally, a state defendant waives
sovereign immunity under the Eleventh Amendment when it removes a case from state

40 La. R.S. 29:1.
41 475 F.Supp.3d 532, 547 (M.D. La. 2020)
to federal court.”42 Thus, the Military Department’s removal of this suit to federal court
constituted a waiver of the State of Louisiana's sovereign immunity to suit in federal
court.43 But the inquiry does not end here.
The Fifth Circuit has held “that waiver does not affect or limit the State's ability to
assert whatever rights, immunities or defenses are provided for by its own sovereign

immunity law to defeat the claims against the State finally and on their merits in the federal
courts.”44 As explained by another section of this Court, “Louisiana's removal to federal
court waived its immunity from suit in regards to the official capacity § 1983 claims, but
the State may still prove that it has immunity from liability on these claims.”45 While
“Section 1983 provides a private right of action for damages to individuals who are
deprived of ‘any rights, privileges, or immunities’ protected by the Constitution or federal
law by any ‘person’ acting under the color of state law[;]”46 according to the Fifth Circuit,
“[t]he Supreme Court has held that a State is not a person against whom a § 1983 claim
for money damages might be asserted.”47 Additionally, “[t]his rule extends to ‘arms of the
state,’ and to a state's ‘officials acting in their official capacities.’”48

42 Price v. Louisiana, Civ. A. No. 16-402-BAJ-EWD, 2017 WL 151394, at *2 (M.D. La. Jan. 13, 2017) (citing
Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 241 (5th Cir. 2005) (citing Lapides v. Bd. of Regents of
University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002))).
43 Williams v. Louisiana, Civ. A. No. 17-453-JWD-EWD, 2019 WL 1003645, at *4 (M.D. La. Feb. 28, 2019).
44 Meyers ex rel. Benzing v. Texas, 454 F.3d 503, 504 (5th Cir. 2006).
45 Williams, 2019 WL 1003645 at *4 (emphasis in original).
46 Stotter v. Univ. of Texas at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007) (quoting 42 U.S.C. § 1983).
47 Med RX/Systems, P.L.L.C. v. Texas Dept. of State Health Servs., 633 Fed. Appx. 607, 610 (5th Cir.
2016) (quoting Lapides v. Bd. of Regents of University System of Georgia, 535 U.S. 613, 617, 122 S.Ct.
1640, 152 L.Ed.2d 806 (2002)) (internal quotation marks omitted).
48 Id. (quoting Howlett v. Rose, 496 U.S. 356, 365, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); Will v. Mich.
Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)).
In this matter, Plaintiff seeks no injunctive or declaratory relief, only monetary
damages. She also concedes that she has only sued the state officials/agencies in their
official capacities and as arms of the State of Louisiana:
Although, in reference to our second Amended Complaint added Lt. Col
Manton, Hon. Jeff Landry in their official capacity, if it would not cause Oliver
any problems. I would be willing to dismiss them from the complaint.49

As the government entity, the Military Department is defendant in this
litigation, it is unnecessary to name a specific individual, Lt. Col. Jackie
Manton, as a defendant in his official capacity. Lt. Col. Jackie Manton,
Attorney General Jeff Landry, and the State of Louisiana, Division of
Administration, Office of Risk Management are all sued in their official
capacity.50

Thus, while Defendants are not immune from suit in federal court based on the Military
Department’s removal, they are immune from liability on Plaintiff’s Section 1983 claims
under applicable state and federal law. Accordingly, Plaintiff’s Section 1983 federal
constitutional claims asserted against the State of Louisiana, the Military Department, the
ORM, AG Landry, and Manton are dismissed with prejudice.51
E. Title VII Claims
Although vague, it appears from Plaintiff’s Complaints that she asserts claims of
discrimination, hostile work environment, retaliation, and constructive discharge under
Title VII. The Court will address the sufficiency of the allegations in Plaintiff’s Complaints
for each of these claims.

49 Rec. Doc. 43, p. 2.
50 Id. at p. 11.
51 The Court also notes that, while the ORM and AG Landry are subject to dismissal based on sovereign
immunity, Plaintiff adds these Defendants in her supplemental complaint but makes no factual allegations
as to either Defendant connecting them in any way to her claims.
1. Discrimination Based on Sexual Orientation
Plaintiff alleges she was terminated based on revealing her sexual orientation –
that she is gay. Title VII of the Civil Rights Act of 1964 prohibits employers from
“discriminat[ing]” against any individual with respect to employment “because of such
individual's ... sex.”52 In Bostock v. Clayton County, the United States Supreme Court held

that discrimination on the basis of sexual orientation or gender identity is a form of sex
discrimination under Title VII.53 The Fifth Circuit instructs:
At the Rule 12(b)(6) stage, our analysis of the Title VII claim is governed by
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002)—and not the evidentiary standard set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under
Swierkiewicz, we have explained, “there are two ultimate elements a plaintiff
must plead to support a disparate treatment claim under Title VII: (1) an
adverse employment action, (2) taken against a plaintiff because of her
protected status.” Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762,
767 (5th Cir. 2019) (quotations omitted) (citing Raj v. La. State Univ., 714
F.3d 322, 331 (5th Cir. 2013)).

But “[a]lthough [a plaintiff does] not have to submit evidence to establish a
prima facie case of discrimination [under McDonnell Douglas] at this stage,
he [must] plead sufficient facts on all of the ultimate elements of a disparate
treatment claim to make his case plausible.” Chhim v. Univ. of Texas at
Austin, 836 F.3d 467, 470 (5th Cir. 2016). And when a plaintiff's Title VII
disparate treatment discrimination claim depends on circumstantial
evidence …, the plaintiff “will ‘ultimately have to show’ that he can satisfy
the McDonnell Douglas framework.” Cicalese, 924 F.3d at 767 (quoting
Chhim, 836 F.3d at 470). “In such cases, we have said that it can be ‘helpful
to reference’ that framework when the court is determining whether a
plaintiff has plausibly alleged the ultimate elements of the disparate
treatment claim.” Id. (quoting Chhim, 836 F.3d at 470).

Under McDonnell Douglas, a plaintiff must establish a prima facie case of
discrimination. 411 U.S. at 802, 93 S.Ct. 1817. Specifically, a plaintiff must
allege facts sufficient to support a finding “that he was treated less favorably
than others outside of his protected class.” Alkhawaldeh v. Dow Chem. Co.,
851 F.3d 422, 427 (5th Cir. 2017).54

52 42 U.S.C. § 2000e-2(a)(1).
53 ––– U.S. ––––, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020).
54 Olivarez v. T-mobile USA, Incorporated, 997 F.3d 595, 599-600 (5th Cir. 2021).
In her Complaints, Plaintiff alleges that she was terminated (or constructively
discharged) by the Military Department; thus, she has properly alleged that she was a
member of a protected class and that she suffered an adverse employment action.
However, Plaintiff has failed to plead any facts suggesting she was treated less favorably
than others “similarly situated” outside the protected class. The Complaints are devoid
of any allegations that any non-gay employees in her same position, with the same
supervisor and job duties, were treated differently than she under the same
circumstances – an employer’s investigation into complaints of Plaintiff’s alleged improper
relationship with subordinates. Thus, Plaintiff has failed to plead facts that would permit

a reasonable inference that she was discriminated against because of her sexual
orientation. Accordingly, Plaintiff’s Title VII discrimination claim is dismissed without
prejudice.
2. Hostile Work Environment55
In her Amended Supplemental Complaint, Plaintiff alleges that she suffered
“harassment while on the job in the form of rumors, false allegations and defamation of
character.”56 Plaintiff contends that she suffered a hostile work environment under state
law,57 but it is unclear if Plaintiff claims a hostile work environment under Title VII. Out of
an abundance of caution, the Court will address Plaintiff’s hostile work environment claim
under Title VII.

55 In her Oppositions, Plaintiff appears to blend her Title VII and Section 1983 hostile work environment
arguments; however, the Court has dismissed Plaintiff’s federal constitutional claims based on sovereign
immunity, and, in any event, Plaintiff has not pled claims for supervisory liability under Section 1983.
56 Rec. Doc. 43, ¶ VIII.
57 Id. at ¶ XIV.
To establish a prima facie case of a hostile work environment, a plaintiff must prove
(1) she belongs to a protected group; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on sexual orientation; (4) the harassment affected a term,
condition, or privilege of employment; and (5) the employer knew or should have known
of the harassment and failed to take prompt remedial action.58 Harassment affects a term,

condition, or privilege of employment when it is “sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working environment.”59
Failure to allege facts in the complaint that demonstrate a severe or pervasive work
environment strong enough to alter the conditions of the plaintiff's employment is fatal to
a plaintiff's claim.60
In opposing the Military Department’s motion, Plaintiff argues that she was
subjected to a hostile work environment
because she was gay (adverse employment act; pretextual; investigations;
lack of proper training in payroll). The harassment complained of in the
instant case is sexual orientation and pretext termination certainly affected
a term and condition and privilege of her employment. The state defendant
was not interested in remedial action.”61

Plaintiff’s other arguments relating to hostile work environment are not relevant
or responsive to Defendants’ motions. Plaintiff discusses the Military Department’s
affirmative defenses, the mental damages she allegedly suffers as a result of the alleged
harassment, administrative exhaustion as a jurisdictional bar (an issue not raised), her

58 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
59 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993).
60 Perez v. Brennan, 766 Fed. Appx. 61, 64-65 (5th Cir. 2019); Whitlock v. Lazer Spot, Inc., 657 Fed. Appx.
284, 287 (5th Cir. 2016); Stone v. Louisiana Dept. of Revenue, 590 Fed. Appx. 332, 340-41 (5th Cir. 2014).
61 Rec. Doc. 39-1, p. 3.
purported Section 1981 claims (such a claim is not alleged), and jurisprudence related to
the standard for discrimination – not hostile work environment – under Title VII.62
In opposing the State Defendants’ motion, Plaintiff cites jurisprudence discussing
what kind of conduct constitutes a hostile work environment and ultimately argues:
A hostile environment claim challenges workplace practices rather than
tangible job benefits and consists of verbal or physical conduct of a sexual
nature that unreasonably interferes with the employee’s work or creates an
intimidating, hostile or offensive working environment. This type of
harassment is both more pervasive and more elusive, it fills the air with a
tense combination of lust and contempt. Although quid pro quo sexual
harassment can only be committed by someone with authority to change
the employee’s job status, employers, supervisors, coworker. “the whole
place was talking about my sexual preference” she was denigrated in front
of other employees and monitored very closely; she asked for more training
but never got it all this affected her for performance.63

. . .

She was subjected repeatedly to abusive conduct direct at her because of
her gender and sexual orientation (accused of favorism with females and
males. Oliver was subjected to and offended by this harassment because
of her sexual orientation. The sexual harassment affected a term, condition
or privilege of her employment by creating an abusive work environment
that affected psychological and/or physical wellbeing. Oliver gave notice to
Lt. Col Manton of the above. The employer failed to take remedial action in
response but instead terminated her. The plaintiff was not terminated for
poor work performance but because of sexual harassment that lead to poor
work performance.64

Assuming arguendo that these claims would satisfy Rule 12(b)(6), these allegations
appear nowhere in Plaintiff’s Complaints.
The Court finds Plaintiff’s allegations insufficient to support a claim for Title VII
hostile work environment. First, any arguments or assertions of facts in Plaintiff’s
Oppositions that are not pled in her Complaints are not properly before the Court.

62 Id. at pp. 3-5.
63 Rec. Doc. 43, pp. 4-5.
64 Id. at pp. 10-11.
“[A]rguments of counsel in a brief are not a substitute for properly pleaded allegations,
and ‘it is axiomatic that a complaint cannot be amended by briefs in opposition to a motion
to dismiss.’”65 Accordingly, to the extent Plaintiff asserts a Title VII hostile work
environment claim, it is dismissed without prejudice.
3. Retaliation

To state a claim for retaliation under Title VII, a Plaintiff must allege facts that would
demonstrate that “‘1) [s]he participated in an activity protected by Title VII; (2) h[er]
employer took an adverse employment action against h[er]; and (3) a causal connection
exists between the protected activity and the adverse employment action.’”66 Under Title
VII, a “protected activity” is defined as “opposition to any practice rendered unlawful by
Title VII, including making a charge, testifying, assisting, or participating in any
investigation, proceeding, or hearing under Title VII.”67 Thus, Title VII contemplates two
distinct types of protected activity: (1) opposition to any practice rendered unlawful by
Title VII (the “opposition clause”), and (2) making a charge, testifying, assisting, or

participating in any investigation, proceeding, or hearing under Title VII (the “participation
clause”).68

65 Mocsary v. Ard, No. 17-1713-SDD-EWD, 2018 WL 4608485, at *11 (M.D. La. Sept. 25, 2018)(quoting
Becnel v. St. Charles Par. Sheriff's Office, No. 15-1011, 2015 WL 5665060, at *1 n.3 (E.D. La. Sept. 24,
2015) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011)
(collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency
of the complaint,” the Court does not consider allegations that appear for the first time in plaintiffs' briefing.
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir.
2012)).
66 Newbury v. City of Windcrest, Texas, 991 F.3d 672, 678 (5th Cir. 2021)(quoting McCoy v. City of
Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007)).
67 Williams v. Recovery Sch. Dist., 859 F. Supp. 2d 824, 830–31 (E.D. La. 2012) (citing Ackel v. Nat'l
Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)).
68 Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274, 129 S.Ct. 846, 172
L.Ed.2d 650 (2009).
Plaintiff has failed to plead a Title VII retaliation claim as her Complaints are devoid
of any allegations suggesting that she participated in protected activity under the
opposition clause or the participation clause, or that a causal connection exists between
such protected activity and her termination. Plaintiff makes only passing references to
retaliation in both Complaints:

Petitioner further avers because of the conversation had she was
discriminated against and the subject of retaliation that caused negative
consequences leading to termination despite Defendant characterizing her
insubordination as grounds for termination.69

Jessica Oliver avers that the Defendants are liable unto her under state law
for: …retaliation …70

Plaintiff has not alleged that she engaged in protected activity under Title VII under
either the opposition or participation clauses, and she makes no allegations that any sort
of protected activity under Title VII is connected to her termination. While it is clear from
Plaintiff’s allegations that she participated in the investigation into the alleged conduct
reported against her, considering that she was questioned by Manton about the same,
Plaintiff does not allege facts from which an inference could be drawn that this
participation constituted the type of protected activity covered, or that this participation
was the reason for her termination.
As mentioned above, any arguments or newly offered facts relating to her
retaliation claims that appear in her Opposition briefs are not properly pled. Moreover,
Plaintiff’s arguments are legally unsupported and non-responsive to the basis for
Defendants’ motions. Plaintiff focuses on the adverse employment action prong, arguing

69 Rec. Doc. 1-2, ¶ 11.
70 Rec. Doc. 26, ¶ XIV.
that “[t]he formation is an adverse employment action of discrimination and retaliation.”71
Not only does this statement make no sense, Defendants have not argued that Plaintiff
did not suffer an adverse employment action in this matter. Plaintiff continues:
The anti-discrimination provision of Title VII of the Civil Rights Acts of 1964
seeks a workplace where individuals are not discriminated against because
of their racial, ethnic, religious, or gender-based status. The anti-retaliation
provision seeks to secure that primary objective by preventing an employer
from interfering (through retaliation) with an employee’s efforts to secure or
advance enforcement of the Act’s basic guarantees. The substantive
provision seeks to prevent injury to individuals based on who they are i1.
The anti-retaliation provision seeks to prevent harm to individuals based on
what they do.2 The anti-retaliation provision, unlike the substantive, is not
limited to discriminatory actions that affect the terms and conditions of
employment. United State Court of Appeals for the Fifth Circuit precedent
recognizing only ultimate employment decisions as actionable adverse
employment actions remains controlling for Title VII discrimination claims.

The investigation of the sexual relationship yield nothing; neither did the
favoritism so, above were both protected activities.

An employee has engaged in activity protected by Title VII of the Civil Rights
Act of 1964 if she has either (1) opposed any practice made an unlawful
employment practice by Title VII or (2) made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing
under Title VII.

Oliver is member of a protected group (gay)[.]72

The foregoing paragraphs are unsupported by citation to any legal authority and
do not respond to the applicable legal standard set forth above for Title VII retaliation.
Plaintiff’s argument suggests that, because the Military Department’s investigation into
her conduct “yield[ed] nothing,” her termination was retaliatory. However, there are no
allegations in her Complaints that being the subject of an investigation constituted
“participating in” protected activity or “opposing” protected activity. The Court is called

71 Rec. Doc. 39-1, p. 2.
72 Id.
upon to test the sufficiency of the pleadings, alone. Plaintiff has failed to state a claim for
Title VII retaliation. Accordingly, Plaintiff’s Title VII retaliation claim is dismissed without
prejudice.
4. Constructive Discharge
A plaintiff asserting a constructive-discharge claim must allege (1) “that [s]he was

discriminated against by h[er] employer to the point where a reasonable person in h[er]
potion would have felt compelled to resign[,]” and (2) “that [s]he actually resigned.”73
Plaintiff has made no allegation that she felt forced or compelled to resign; rather, she
repeatedly alleges that she was terminated.74 Although Plaintiff includes, for the first time,
an allegation that she was constructively discharged in her Amended Supplemental
Complaint,75 it is unaccompanied by any factual allegations to support a claim for
constructive discharge, and Plaintiff consistently argues in her Oppositions that she was
terminated.76 Accordingly, Plaintiff’s constructive discharge claim is dismissed without
prejudice.

F. Americans with Disabilities Act (“ADA”) Claim77
A lone reference to disability discrimination is made in the opening paragraph of
Plaintiff’s original Complaint: “… seeking to recover damages for discrimination based on
retaliation, disability, and sexual orientation in violation of Title VIII78 of the Civil Rights
Act of 1964 … .”79 First, disability discrimination is not actionable under Title VII. Second,
Plaintiff never mentions the ADA or the Louisiana counterpart. Plaintiff does not even

73 Green v. Brennan, 578 U.S. 547, 555, 136 S. Ct. 1769, 195 L.Ed.2d 44 (2016).
74 See Rec. Doc. 1-2, ¶¶ 9, 11.
75 Rec. Doc. 26, ¶ XIV.
76 Rec. Doc. 39-1, pp. 3, 6, 8, 9, 15, 17, 20; Rec. Doc. 43, pp. 10, 11, 16.
77 42 U.S.C. § 12112(a).
78 The Court assumes this is a typographical error.
79 Rec. Doc. 1-2, p. 1.
allege that she is a qualified individual with a disability, or that she is disabled as defined
by the controlling statutes – the first step to establishing any federal or state disability
discrimination claim.80 Further, Plaintiff does not address any claim for disability
discrimination in her Oppositions. Accordingly, Plaintiff’s disability discrimination claim is
dismissed with prejudice.

G. Louisiana Employment Discrimination Law (“LEDL”)
Plaintiff alleges the Defendants are liable to her under state employment law for
discrimination, hostile work environment, retaliation, and constructive discharge.81 All
Defendants move for dismissal of Plaintiff’s LEDL claims, arguing that Louisiana does not
recognize sexual orientation as a protected class. Defendants rely on the decision in
Louisiana Dep’t of Just. v. Edwards, wherein the First Circuit Court of Appeal of Louisiana
held that the LEDL does not prohibit discrimination of sexual orientation: “the Louisiana
Legislature and the people of the State of Louisiana have not yet revised the laws and/or
the state Constitution to specifically add ‘sexual orientation’ or ‘gender identity’ to the list
of protected persons relating to discrimination.”82 This case remains good law. Plaintiff

fails to respond to this argument in either Opposition brief.
Further, if Louisiana did recognize sexual orientation as a protected class,
Plaintiff’s claims under the LEDL would still be subject to dismissal based on the findings
discussed above as to these claims under Title VII because claims under the LEDL are
analyzed under the Title VII framework and jurisprudence.83 Accordingly, Plaintiff’s LEDL

80 See United States Equal Employment Opportunity Commission v. Mid South Extrusion Inc., 341
F.Supp.3d 653, 659 (W.D. La. 2018)(citations omitted); see also, Conine ex rel. Estate of Addie v. Universal
Oil Products Co., 42,409 (La. App. 2 Cir. 926/07), 966 So.2d 763, 766-67; La. R.S. 23:323.
81 Rec. Doc. 43-2, ¶ XIV.
82 2017-0173 (La. App. 1 Cir. 11/1/17), 233 So.3d 76, 81.
83 See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007); Harrell v. Orkin, LLC, 876 F. Supp. 2d 695,
701 (E.D. La. 2012) (Africk, J.) (“[f]ederal courts look to Title VII jurisprudence to interpret the LEDL.”).
claims are dismissed with prejudice.
H. Prescribed State Law Tort Claims/Vicarious Liability Claim
Plaintiff alleges Defendants committed the following state law torts, all of which are
subject to a one-year prescriptive period: IIED,84 NIED,85 fraud,86 misrepresentation,87
defamation,88 coercion,89 and general negligence under Louisiana Civil Code article

2315.90 Plaintiff’s employment ended on April 28, 2020. Plaintiff filed this lawsuit in state
court on April 20, 2022, nearly two years after her termination. Thus, the above listed
claims are prescribed on the face of the Complaints.
Additionally, “[t]he Fifth Circuit makes it clear that when a party does not address
an issue in his brief to the district court, that failure constitutes a waiver on appeal.”91 “By
analogy, failure to brief an argument in the district court waives that argument in that
court.”92 Thus, Plaintiff has also abandoned several of these claims by failing to address
them in her Oppositions. Plaintiff fails to mention or meaningfully address the following

84 Lanzas v. Am. Tobacco Co., Inc., 46 F.App'x. 732 (5th Cir. 2002).
85 Id.
86 Id.
87 Hunt Guillot & Assocs., LLC v. Clark, 53,434 (La. App. 2 Cir. 4/22/20), 293 So.3d 1278, 1283.
88 Jeansonne v. Bonano, 2017-0828 (La. App. 1 Cir. 1/23/18), 241 So.3d 1027, 1032.
89 Damond V. Marullo, 2019-0675 (La. App. 1 Cir. 6/22/20), 307 So.3d 234, 240, writ denied sub
nom. Damond v. Marullo, 2020-01243 (La. 3/23/21), 312 So.3d 1104.
90 Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 478 (5th Cir. 2002).
91 JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (quoting Magee v. Life
Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003) (citations omitted)); see also United
States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010) (defendant's failure to offer any “arguments or
explanation ... is a failure to brief and constitutes waiver”).
92 JMCB, 336 F. Supp. 3d at 634 (quoting Magee, 261 F. Supp. 2d at 748 n.10); see also Kellam v.
Metrocare Servs., No. 3:12-CV-352-P, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013), aff'd sub nom.
Kellam v. Metrocare Servs., 560 F. App'x 360 (5th Cir. 2014) (“Generally, the failure to respond to
arguments constitutes abandonment or waiver of the issue.” (citations omitted)); Mayo v. Halliburton Co.,
No. CIV. A. H-10-1951, 2010 WL 4366908, at *5 (S.D. Tex. Oct. 26, 2010) (granting motion to dismiss
breach of contract claim because plaintiff failed to respond to defendants' motion to dismiss on this issue
and thus waived the argument). See also Apollo Energy, LLC v. Certain Underwriters at Lloyd's, London,
387 F. Supp. 3d 663, 672 (M.D. La. 2019) (finding that, because plaintiff failed to respond to defendant's
argument on an issue, the Court could conclude that a policy exclusion applied (citing, inter alia, JMCB,
336 F. Supp. 3d at 634)).
claims in her briefs: fraud, NIED, general negligence (including duty and breach),
misrepresentation, and defamation. In one brief, Plaintiff discusses coercion, arguing that
Manton “coerced” subordinates “to write statements against Oliver,”93 but she fails to
address the basis for Defendants’ motion to dismiss that claim, i.e., that Plaintiff lacks
standing to assert a claim for coercion that allegedly happened to others.

Plaintiff contends her IIED claim is not time-barred because the continuing
violations doctrine, also referred to as the continuing tort doctrine, applies to this claim.
However, Plaintiff misunderstands the law. Plaintiff argues:
Here, the gravamen of Plaintiff’s IIED claim concerns the state labeling a
problem and a nuisance on a daily basis for over 3 years, as well as other
acts that overlay with her hostile work environment claims. Thus, the Court
may apply a continuing violations theory and consider events occurring
throughout the entire time period during which Plaintiff alleges she was
harassed resulting in IIED.94

However, there is no allegation that any harassing conduct took place beyond April 28,
2020, or within one year of her filing date of April 20, 2022. The continuing violations
doctrine does not apply to Plaintiff’s IIED claim.
The Louisiana Supreme Court has explained that “[t]he continuing tort doctrine is
an exception to La. C.C. art. 3492 that applies when continuous tortious conduct causes
continuing damages.”95 For the continuing tort doctrine to apply, three requirements must
be met—a continuing duty owed to the plaintiff, a continuing breach of that duty by the
defendants, and a continuing injury or damages that arises day to day.96 “‘The inquiry is

93 Rec. Doc. 39-1, p. 13.
94 Id. at p. 7.
95 Alexander v. La. State Board of Private Investigator Examiners, 2015-0537 (La. App. 4 Cir. 2/17/17), 211
So.3d 544, 557 (citing Crump v. Sabine River Authority, 98-2326, p. 10 (La. 6/29/99), 737 So.2d 720, 728;
Bustamento v. Tucker, 607 So.2d 532, 542 (La. 1992)).
96 Id. (citation omitted).
essentially a conduct-based one, asking whether the tortfeasor perpetuates the injury
through overt, persistent, and ongoing acts.’”97 If the alleged injury-causing conduct
terminates, there is no continuing tort, even if the plaintiff continues to experience injury
in the absence of any ongoing activity by the tortfeasor.98 “‘Both conduct and damage
must be continuous’ for the continuing tort doctrine to apply.”99

Plaintiff has not alleged that the purported harassing or tortious conduct persisted
beyond her termination date or that any conduct was committed within a year of Plaintiff
filing suit; thus, Plaintiff’s IIED claim is prescribed. As set forth above, even though the
Plaintiff may have continued to suffer the alleged damage from the tortious conduct, the
continuing violations doctrine does not apply unless both the tortious conduct and the
resulting damage are continuous. Thus, Plaintiff’s IIED claim is prescribed.
Accordingly, Plaintiff’s IIED, NIED, fraud, misrepresentation, defamation, coercion,
and general negligence claims are dismissed with prejudice as they are prescribed and/or
waived. Further, because none of Plaintiff’s state law tort claims are viable, Plaintiff’s

vicarious liability claim is likewise dismissed with prejudice.
I. Breach of Warranty/Breach of Contract Claims
Finally, Plaintiff has asserted claims for “breach of warranty and/or contract”100 in
her Amended Supplemental Complaint. As with several of Plaintiff’s state law tort claims,
Plaintiff has abandoned any warranty claim by failing to address Defendants’ motion to
dismiss this claim in her Oppositions. Plaintiff’s warranty claim is therefore dismissed with

97 Id. (quoting Hogg, 09–2632, 09–2635 at p. 16, 45 So.3d at 1003).
98 Id. (quoting Hogg, 09–2632, 09–2635 at p. 16, 45 So.3d at 1003).
99 Id. (quoting Risin v. D.N.C. Investments, L.L.C., 05-0415, p. 8 (La. App. 4 Cir. 12/7/05), 921 So.2d 133,
138).
100 Rec. Doc. 26, ¶ XV.
prejudice.
The Defendants seek dismissal of Plaintiff’s breach of contract claim because
Plaintiff asserts no factual allegations as to any contract she entered into with any
Defendant. Plaintiff counters:
Plaintiff has sufficiently alleged the elements of breach of contract. As to the
first element, Plaintiff alleges that, on 12/06/18, the defendant undertook an
obligation- an employment contract- requiring it to pay Plaintiff a set salary,
even in the event of her removal for cause. As for the second element,
Plaintiff alleges that, on 4/28/20, the state defendant failed to perform its
obligation by terminating; Plaintiff’s pay in response to her removal for
cause. Finally, considering the third element, Plaintiff alleges that she has
suffered at least $200,000 in damages as a result of this breach. Because
Plaintiff has sufficiently pleaded all required elements, the court must not
dismiss her claim.101

However, none of these factual allegations appear in Plaintiff’s Complaints.
“By its nature, the relationship between an employee and her employer is
contractual.”102 However, in Louisiana, “an employment relationship is ‘at will’ unless the
parties expressly agree otherwise.”103 Where an employee is “at will,” “[a] claim for
wrongful termination of the contract is futile.”104 Further, “[t]o state a claim for breach of
contract under Louisiana law, ‘a plaintiff must allege a breach of a specific provision of
the contract.’”105
The allegations in Plaintiff’s Complaints do not state: (1) that a contract exists
between herself and Defendants; (2) the nature of her employment as being “at will” or

101 Rec. Doc. 39-1, pp. 8-9.
102 Hunter v. Jefferson Parish Public School System, No. 17-2015, 2017 WL 4619741, at *7 (E.D. La. Oct.
13, 2017)(citing Central Healthcare Servs. v. Schwing, No. 09-4289, 2009 WL 4060468, at *2 (E.D. La.
Nov. 20, 2009) (citing Hundson v. Allstate Ins. Co., 169 So.2d 598, 602 (La. App. 2nd Cir. 1964))).
103 Schwing, 2009 WL 4060468, at *2 (citing Finkle v. Majik Market, 628 So.2d 259, 262
(La.Ct.App.1993)(“Where there is no specific contract between the employee and employer, the employee
is at-will and may be terminated for any reason, at any time....”)).
104 Id.
105 Barbe v. Ocwen Loan Servicing, LLC, 383 F.Supp.3d 634, 643 (E.D. La. 2019)(quoting Blackstone v.
Chase Manhattan Mortgage Corp., 802 F.Supp.2d 732, 738 (E.D. La. 2011)).
pursuant to a written contract; or (3) any specific contract provision any Defendant
breached. Even Plaintiff’s claims quoted above, which are not alleged in any Complaint,
do not satisfy the applicable standard. Nevertheless, the Court will dismiss Plaintiff’s
breach of contract claim without prejudice, with leave to amend if possible.
IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Strike Answer to Complaint106 is
DENIED. The Motion to Dismiss for Failure to State a Claim107 by the Military Department
and the Motion to Dismiss for Failure to State a Claim and Pursuant to Rule 12(b)(1)108
by the State Defendants are GRANTED as follows: Plaintiff’s federal constitutional claims
asserted pursuant to 42 U.S.C. § 1983 are dismissed with prejudice; Plaintiff’s Title VII
claims are dismissed without prejudice; Plaintiff’s ADA claim is dismissed with prejudice;
Plaintiff’s LEDL claims, claims of IIED, NIED, fraud, misrepresentation, defamation,
coercion, general negligence, and warranty are dismissed with prejudice. Plaintiff’s
breach of contract claim is dismissed without prejudice. For the same reasons set forth
herein, Plaintiff’s Motion for Judgment on the Pleadings (12(C))109 is DENIED.

Plaintiff shall be given a final opportunity to amend her Complaint to cure the
deficiencies addressed herein. Plaintiff is granted leave to amend only as to the claims
dismissed WITHOUT prejudice. Plaintiff is not granted leave to add new parties or new
claims. Plaintiff shall file a superseding, comprehensive, amended complaint in
accordance with Local Rule 10(a)(5) on or before April 12, 2023. The failure to file an

106 Rec. Doc. 42.
107 Rec. Doc. 32.
108 Rec. Doc. 37.
109 Rec. Doc. 49.
amended complaint within this time period will result in a dismissal of all claims WITH
prejudice.110
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 29th day of March, 2023.

S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

110 Counsel for Plaintiff is cautioned that, in the future, any pleadings or briefs submitted that contain
numerous misspellings, typographical, and/or grammatical errors shall be stricken, and counsel shall be
ordered to show cause why sanctions should not be imposed. Plaintiff’s briefs submitted in connection with
the Motions to Dismiss are rife with misspelled words, incomplete sentences, grammatical errors including
lack of punctuation, improper citations to jurisprudence, and, in some instances, incoherent and/or irrelevant
arguments. Rec. Doc. 39-1 is particularly egregious in this regard. The briefs submitted are beneath the
standard of professionalism expected by members of the federal bar.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192609. Public record. Not legal advice.