IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CAROLINA GARCIA, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-1917-D

VS. §

 §

ZALE CORPORATION, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this employment discrimination action, plaintiff Carolina

Garcia (“Garcia”) moves for leave to amend her complaint, and three

of the four individual defendants——Mike Foxx (“Foxx”), Tyke

Randolph (“Randolph”), and Vicki McGuire (“McGuire”)——move to

dismiss the claims against them. For the reasons that follow, the

court grants the motions in part and denies them in part.

I

Garcia sued defendants Zale Corporation (“Zale”), Foxx,

Randolph, McGuire, and Richard Ross (“Ross”) in Texas state court

in July 2004. She alleged claims for violations of Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and

the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.;

race discrimination, in violation of Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Texas

Commission on Human Rights Act (“TCHRA”), Tex. Labor Code Ann.

§§ 21.001-21.556 (Vernon 1996 & Supp. 2005), and 42 U.S.C. § 1981;

sex discrimination, in violation of Title VII and the TCHRA; and

 

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Defendants maintain that Ross has not yet been served.

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intentional infliction of emotional distress. Zale removed the

case to this court in September 2004 based on federal question

jurisdiction. Garcia did not effect service on Foxx, Randolph, or

McGuire until November 2005.1 She later filed a motion for leave

to amend, and Foxx, Randolph, and McGuire filed a motion to

dismiss.

II

Garcia moves for leave to file a first amended complaint to

add claims against Zale for a hostile work environment and

negligent supervision and negligent retention. Defendants

partially oppose the motion. They contend that the court should

deny Garcia leave to add claims for negligent supervision and

negligent retention because the amendment would be futile.

Defendants reason that such claims are preempted against Zale under

the Texas Workers’ Compensation Act (“TWCA”) and that, assuming

arguendo that Garcia intends to assert the claims against the

individual defendants, they cannot be held liable because Garcia

has not pleaded facts, and cannot establish, that they were the

employer of the alleged wrongdoer.

A

“It is settled that the grant of leave to amend the pleadings

pursuant to Rule 15(a) is within the discretion of the trial

court.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.

 

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321, 330 (1971). Leave to amend pleadings “shall be freely given

when justice so requires.” Fed. R. Civ. P. 15(a). The court

recognizes that it may deny leave when the amendment would be

futile, that is, when “the amended complaint would fail to state a

claim upon which relief could be granted.” Stripling v. Jordan

Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000). As the court has

noted before, however, 

the court’s almost unvarying practice when

futility is raised is to address the merits of

the claim or defense in the context of a Rule

12(b)(6) or Rule 56 motion. The court only

infrequently considers the merits of new

causes of action in the context of Rule 15(a).

The court prefers instead to do so in the

context of a Rule 12(b)(6) or Rule 56 motion,

where the procedural safeguards are surer. 

Poly-Am., Inc. v. Serrot Int’l Inc., 2002 WL 206454, at *1-*2 (N.D.

Tex. Feb. 7, 2002) (Fitzwater, J.) (quoting Sells v. Six Flags Over

Tex., Inc., Civil Action No. 3:96-CV-1574-D, slip op. at 2 (N.D.

Tex. Oct. 17, 1996) (Fitzwater, J.)). 

In this case, the court declines to address Zale’s futility

argument in the context of a motion for leave to amend. Garcia

does not allege in her proposed first amended complaint that she

was covered by workers’ compensation. Therefore, to conclude that

her claims for negligent supervision and negligent retention are

preempted, the court would be required to deny leave to amend on a

basis that might not even support a Rule 12(b)(6) motion (because

 

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2For example, one of this court’s decisions that defendants

cite in support of their motion——Tillison v. Trinity Valley

Electric Cooperative, 2005 WL 292423 (N.D. Tex. Feb. 7), vacated,

No. 3:03-CV-2480-D (N.D. Tex. Apr. 18), summary judgment granted

after additional submissions, 2005 WL 2124122 (N.D. Tex. Sept. 2)

(Fitzwater, J.), appeal docketed, No. 05-11332 (5th Cir. Dec. 1,

2005)——was decided on motion for summary judgment, not on motion to

dismiss for failure to state a claim or on motion for leave to

amend.

3Moreover, as the court explains below in addressing the

individual defendants’ motion to dismiss, it appears that Garcia

sues them only under § 1981.

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it would be based on facts external to the complaint).2

B

The court denies Garcia’s motion, however, to the extent she

seeks to sue the individual defendants for negligent supervision

and negligent retention because she has not pleaded that any

individual defendant was the employer of the alleged wrongdoer.

See, e.g., Sanders v. Casa View Baptist Church, 898 F. Supp. 1169,

1179 (N.D. Tex. 1995) (Solis, J.) (“To prevail on a claim for

negligent hiring or supervision, a plaintiff must show that the

employer retained in its employment an individual who was

incompetent or unfit for the job as a result of a failure to make

a reasonable inquiry into the individual’s competence and

qualifications.” (emphasis added)); Morris v. JTM Materials, Inc.,

78 S.W.3d 28, 49 (Tex. App. 2002, no pet.) (referring to liability

for negligent hiring, retention, and supervision as employer

liability).3

Accordingly, Garcia’s motion for leave to file first amended

 

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The court notes that, at least in ¶ 63 of her proposed first

amended complaint, Garcia refers to “American Airlines” rather than

to Zale. She may wish to review the proposed pleading anew before

filing it to ensure that there are no inadvertent references to

parties whom she does not intend to include as defendants.

5

Although in § II(A) the court has granted in part Garcia’s

motion for leave to amend, the court may consider these arguments

because they apply equally to her proposed first amended complaint.

See, e.g., Holmes v. Nat’l Football League, 939 F. Supp. 517, 522

n.7 (N.D. Tex. 1996) (Fitzwater, J.).

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complaint is granted, except that she may not include claims

against the individual defendants for negligent supervision or

negligent retention.4 She must file her first amended complaint

within 15 days of the date this memorandum opinion and order is

filed.

III

Foxx, Randolph, and McGuire move to dismiss Garcia’s action.

They seek dismissal based on Rule 12(b)(5) on the ground that

Garcia did not serve them until more than 120 days after she filed

suit, in violation of Rule 4(m). They also maintain under Rule

12(b)(6) that her claims against them under Title VII, the TCHRA,

and the ADA must be dismissed because they are supervisors who

cannot be held liable under these laws. Randolph also posits that

the claims against him should be dismissed under Rule 12(b)(6)

because Garcia has failed to plead facts that could constitute a

violation of law.5

 

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Rule 4(m):

If service of the summons and complaint is not

made upon a defendant within 120 days after

the filing of the complaint, the court, upon

motion or on its own initiative after notice

to the plaintiff, shall dismiss the action

without prejudice as to that defendant or

direct that service be effected within a

specified time; provided that if the plaintiff

shows good cause for the failure, the court

shall extend the time for service for an

appropriate period. This subdivision does not

apply to service in a foreign country pursuant

to subdivision (f) or (j)(1).

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A

 It appears from Garcia’s response to defendants’ motion that

she is suing the individual defendants only under § 1981. See,

e.g., P. Resp. 1, 4, 5. Accordingly, the court dismisses her

claims against them under Title VII, the TCHRA, and the ADA.

B

The court now addresses defendants’ motion to the extent based

on Rules 12(b)(5) and 4(m) and Randolph’s individual motion under

Rule 12(b)(6). 

Rule 4(m) does not command that a case must always be

dismissed when service is not effected within 120 days. It permits

the court to direct that service be effected within a specified

time and, provided a plaintiff shows good cause for failing to

effect service, requires that the court extend the time for service

for an appropriate period.6 Defendants did not move to dismiss

under Rule 12(b)(5) until after summonses for them had been issued

 

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on October 26, 2005. Had these defendants moved for dismissal

under Rule 4(m) before that date, the court, absent a showing of

undue prejudice, would likely have exercised its prerogative to

“direct that service be effected within a specified time.”

Defendants have not shown that the delay in service unduly

prejudiced them. In their motion they focus instead on the premise

that Garcia cannot demonstrate good cause for failing to serve them

within the 120-day period prescribed by Rule 4(m). Accordingly,

the court declines to dismiss Garcia’s action against the

individual defendants for failure to effect service within the time

prescribed by Rule 4(m).

C

The court also denies Randolph’s individual Rule 12(b)(6)

motion. “‘[T]he motion to dismiss for failure to state a claim is

viewed with disfavor and is rarely granted.’” Kaiser Aluminum &

Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050

(5th Cir. 1982) (quoting 5A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357, at 598 (1969)).

“[D]ismissal of a claim on the basis of barebones pleadings is a

‘precarious disposition with a high mortality rate.’” Id. (quoting

Barber v. Motor Vessel “Blue Cat,” 372 F.2d 626, 627 (5th Cir.

1967)). “The court may dismiss a claim when it is clear that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.” Jones v. Greninger, 188 F.3d 322,

 

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324 (5th Cir. 1999) (per curiam) (Rule 12(c) decision) (citing Fee

v. Herndon, 900 F.2d 804, 807 (5th Cir.1990)). “In analyzing the

complaint, [the court] will accept all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Id.

(citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th

Cir.1996)). “The issue is not whether the plaintiff will

ultimately prevail, but whether he is entitled to offer evidence to

support his claim.” Id. (citing Doe, 81 F.3d at 1401). “Thus, the

court should not dismiss the claim unless the plaintiff would not

be entitled to relief under any set of facts or any possible theory

that he could prove consistent with the allegations in the

complaint.” Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368

(5th Cir. 1996)). Under the highly deferential standard of Conley

v. Gibson, 355 U.S. 41, 45-46 (1957), and viewing the allegations

of Garcia’s complaint in the light most favorable to her for

purposes of deciding the motion to dismiss, see, e.g., Royal Bank

of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990)

(Fitzwater, J.), the court is unable to say that she can prove no

set of facts, consistent with the allegations, that would entitle

her to relief against Randolph. The court therefore denies his

individual motion to dismiss.

 

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* * *

The court grants in part and denies in part Garcia’s November

3, 2005 motion for leave to file first amended complaint. She must

file a first amended complaint, consistent with this memorandum

opinion and order, within 15 days of the date it is filed. The

court grants in part and denies in part defendants’ December 2,

2005 motion to dismiss.

SO ORDERED.

February 1, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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