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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

LATRICE SALVADOR,

 Plaintiff,

v.

TARGET CORPORATION,

 Defendant.

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Civil Action No. 4:23-cv-585-SDJ-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court are Defendant Target Corporation’s (“Target”) Motion to 

Dismiss Plaintiff’s Amended Petition (the “Motion to Dismiss”) (Dkt. 9) and Plaintiff Latrice 

Salvador’s (“Plaintiff”) Motion to Remand (the “Motion to Remand”) (Dkt. 7), to which Target 

filed a response (Dkt. 10). For the following reasons, the Court recommends that the Motion to 

Dismiss (Dkt. 9) and Motion to Remand (Dkt. 7) be DENIED.

I. BACKGROUND

On May 19, 2023, Plaintiff, proceeding pro se, filed the Original Petition (Dkt. 4) in the 

16th Judicial District Court, Denton County, Texas. See Dkt. 4. In the Original Petition (Dkt. 4), 

Plaintiff alleges that, after she requested a Target employee to unlock a display case containing 

headphones, the employee refused to do so. See id. at 2. Plaintiff alleges that she inquired as to the 

reason for the Target employee’s refusal; however, she received no response. See id. Plaintiff 

alleges that she requested a manager, who unlocked the display case and gave Plaintiff a discount 

on the headphones. See id. Plaintiff contends that Target unlawfully engaged in racial 

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discrimination, thereby entitling her to $100,000 in damages. See id. at 1. However, Plaintiff 

makes no reference to the law entitling her to relief. See generally id.

On June 22, 2023, Target removed this action to federal court on the basis of diversity 

jurisdiction. Dkt. 1 at 2. That same day, Target filed a Motion for a More Definite Statement (the 

“First Motion for a More Definite Statement”) (Dkt. 2), wherein it contends that “Plaintiff’s 

Original Petition . . . is so vague that [Target] is unable to prepare a response.” Dkt. 2 at 1. As 

such, Target “requests the [C]ourt order Plaintiff to clearly plead the date of the occurrence, the 

elements of her claim[,] and [a] plausible factual basis for [it].” Id. at 2. On July 7, 2023, the Court 

ordered Plaintiff to respond. See Dkt. 5.

On July 21, 2023, rather than filing a response to the First Motion for a More Definite 

Statement (Dkt. 2), Plaintiff filed an Amended Petition (Dkt. 6), wherein Plaintiff restates the facts 

of the Original Petition (Dkt. 4) without significant modification. Compare Dkt. 4 at 1–2, with

Dkt. 6 at 2. However, Plaintiff adds Defendants “John Doe #1” and “John Doe #2” (collectively, 

the “Unnamed Defendants”), employees of Target, and alleges a “racial profiling” claim against 

them citing “the Civil Rights Act of 1964.” Id. at 1, 3. Plaintiff further joins her husband, Teniola 

Salvador, as a Plaintiff in this action. Id. at 1. That same day, Plaintiff filed a Motion to Remand 

(Dkt. 7), wherein she argues that, because the Unnamed Defendants are citizens of Texas, “[t]here 

is no diversity jurisdiction” and this action must be remanded. Dkt. 7 at 1. In its response (Dkt. 10), 

Target asserts that Plaintiff added the Unnamed Defendants “in an effort to defeat diversity 

jurisdiction” and, as such, the Court should disallow the joinder. Dkt. 10 at 1–2.

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On August 2, 2023, Target filed the Motion to Dismiss (Dkt. 9), wherein Target contends 

the Court should Dismiss the Amended Petition (Dkt. 6) as filed “late, without leave of court[,] 

and without justification.” Dkt. 9 at 3.1

II. LEGAL ANALYSIS

A. Motion to Dismiss (Dkt. 9)

In the Motion to Dismiss (Dkt. 9), Target contends that the Amended Petition (Dkt. 6) 

should be dismissed because it “was filed late and without leave of court.” See Dkt. 9 at 1. Plaintiff

did not respond.

Under Rule 15 of the Federal Rules of Civil Procedure, a “party may amend its pleading 

once as a matter of course.” FED. R. CIV. P. 15(a)(1). However, “if the pleading is one to which a 

responsive pleading is required,” the amendment must be made no later than “21 days after service 

of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 

whichever is earlier.” FED. R. CIV. P. 15(a)(1)(B).

Target filed the First Motion for a More Definite Statement (Dkt. 2) under Rule 12(e) on 

June 22, 2023. Accordingly, Rule 15 permitted Plaintiff to file an amended pleading as a matter of 

course twenty-one days after service of the First Motion for a More Definite Statement (Dkt. 2)—

July 13, 2023. FED. R. CIV. P. 15(a)(1)(B). However, on July 7, 2023, the Court provided Plaintiff 

fourteen days to respond to the First Motion for a More Definite Statement (Dkt. 2). See Dkt. 5; 

see also FED. R. CIV. P. 6(b)(1)(A). Fourteen days later, on July 24, 2023, Plaintiff filed the 

Amended Petition (Dkt. 6).

Target contends that the Amended Petition (Dkt. 6) was not timely because it was filed 

more than twenty-one days after service of the First Motion for a More Definite Statement (Dkt. 2). 

1 On August 2, 2023, Target also filed a Second Motion for a More Definite Statement (Dkt. 11), which will be 

considered in a subsequent order.

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See Dkt. 9 at 1–2. But the Court may extend many deadlines, FED. R. CIV. P. 6(b)(1), and it did so 

here. See Dkt. 5. The Court’s July 7, 2023 Order (Dkt. 5) provided Plaintiff an additional fourteen 

days to file a response to the First Motion for a More Definite Statement (Dkt. 2). See id. One

permissible response to a motion for a more definite statement is to amend the purportedly 

defective pleading. See FED. R. CIV. P. 15 advisory committee’s note to 2009 amendment (“A 

responsive amendment may avoid the need to decide the motion or reduce the number of issues to 

be decided, and will expedite determination of issues that otherwise might be raised seriatim. It 

also should advance other pretrial proceedings.”); cf. N.Y. Life Ins. Co. v. Grant, 57 F. Supp. 3d 

1401, 1408–09 (M.D. Ga. 2014) (finding an extension of time to respond to a motion to dismiss 

also extended the time to file an amended pleading). Therefore, by extending the time for Plaintiff 

to file a response to the First Motion for a More Definite Statement (Dkt. 2), the Court also 

extended the time for Plaintiff to file an amended pleading as a matter of course. As Plaintiff filed 

the Amended Petition (Dkt. 6) within the fourteen days prescribed by the Court, Dkt. 5, it is timely. 

Thus, the Motion to Dismiss (Dkt. 9) should be denied, and the Amended Petition (Dkt. 6) should 

be deemed the live pleading in this matter.

B. Motion to Remand (Dkt. 7)

In the Motion to Remand (Dkt. 7), Plaintiff argues that, in light of the addition of the 

Unnamed Defendants in the Amended Petition (Dkt. 6), the Court no longer has diversity 

jurisdiction. See Dkt. 7 at 1. Accordingly, Plaintiff concludes that the case should be remanded. 

Id. In its response (Dkt. 10), Target contends that Plaintiff joined the non-diverse parties “in an 

effort to defeat diversity jurisdiction” and, therefore, joinder should be denied. Dkt. 10 at 1–2. The 

parties are correct that the Amended Petition (Dkt. 6) destroys diversity jurisdiction. But they both 

appear to ignore the presence of federal question jurisdiction.

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In the Amended Petition (Dkt. 6), Plaintiff asserts claims under “the Civil Rights Act of 

1964”—a federal statute. Dkt. 6 at 3. As “[a] suit arises under the law that creates the cause of 

action,” the Court has federal question jurisdiction. Am. Well Works Co. v. Layne & Bowler Co., 

241 U.S. 257, 260 (1916); see Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 377 & n.8 (2012) 

(“[T]here is no serious debate that a federally created claim for relief is generally a ‘sufficient 

condition for federal-question jurisdiction[.]’” (quoting Grable & Sons Metal Prods., Inc. v. Darue 

Eng’g & Mfg., 545 U.S. 308, 317 (2005))). Thus, the Motion to Remand (Dkt. 7) should be denied.

III. RECOMMENDATION

For the foregoing reasons, the Court recommends that the Motion to Dismiss (Dkt. 9) be 

DENIED, and the Amended Petition (Dkt. 6) be deemed the live pleading in this matter.

The Court further recommends that the Motion to Remand (Dkt. 7) be DENIED.

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). 

A party is entitled to a de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) 

(en banc), superseded by statute on other grounds, 29 U.S.C. § 636(b)(1) (extending the time to 

file objections from ten (10) to fourteen (14) days).

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