United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Orthofix Medical, Inc.'s
(“Orthofix”) Motion to Dismiss Plaintiff's
Original Complaint under Rule 12(b)(6) (Dkt. #5). After
reviewing the motion and the relevant pleadings, the Court
finds that Plaintiff Kathryn Boston (“Plaintiff”)
should be given leave to amend her complaint under Rule
15(a). Accordingly, the Court finds that the motion should be
denied as moot.
14, 2019, Plaintiff filed her Complaint, alleging
discrimination, hostile work environment, and retaliation
claims under Title VII against Options Medical and Defendant
Orthofix, Inc. (“Orthofix”) (Dkt. #1 at p. 7).
From approximately November 2016 until September 28, 2017,
Plaintiff was employed as a Junior Associate Territory
Manager by Options Medical in Gainesville, Florida, where she
traveled to doctors' offices in Florida to obtain
paperwork authorizing the use of Defendant Orthofix's
devices (Dkt. #1 at pp. 1, 4).
Title VII claims center around two, discrete sets of
events-one occurring entirely in Florida, the other occurring
entirely in Texas. First, Plaintiff claims that while working
as a Territory Manager for Options Medical in Florida, she
was subjected to severe and pervasive sexual harassment by a
Florida neurosurgeon who was one of Options Medical's
largest accounts (Dkt. #1 at p. 4). Plaintiff alleges she
reported this harassment and that this harassment was
witnessed by Options Medical's management, but Options
Medical did not investigate and took no remedial measures
(Dkt. #1 at p. 5). Plaintiff also alleges that Options
Medical encouraged her endure the Florida neurosurgeon's
harassment, retaliated against her for reporting it, and
subjected her to a constructive discharge (Dkt. #1 at pp.
alleges that the second set of events occurred around August
7, 2017, after she was sent to Texas for a product-training
event by Options Medical (Dkt. #1 at p. 6). The training was
at Defendant Orthofix's headquarters in Lewisville, Texas
(Dkt. #1 at p. 6). Plaintiff claims she discussed the Florida
neurosurgeon's harassment with Defendant Orthofix's
president at the training, but Orthofix did nothing to
investigate (Dkt. #1 at p. 6). Plaintiff then alleges that
the next night, Orthofix's president invited Plaintiff to
go to a night club with him, where he asked one of Plaintiff
s colleagues to inform Plaintiff that he would like to date
her (Dkt. #1 ⁋ 26).
claims she was “Defendants' employee” at all
relevant times, but there are no facts in her complaint
indicating that she was ever employed by Defendant Orthofix
(Dkt. #1 at p. 3). Around February 2019, nearly two years
after Plaintiff stopped working for Options Medical,
Defendant Orthofix acquired Options Medical (Dkt. #1 at p.
19, 2019, Orthofix filed its Motion to Dismiss Plaintiffs
Original Complaint under Rule 12(b)(6) (Dkt. #5). On August
2, 2019, Plaintiff filed her response, arguing that
Orthofix's motion should be denied, or in the
alternative, that she be given leave to amend her complaint.
(Dkt. #13 at p. 10). Orthofix filed its reply on August 5,
2019 (Dkt. #15). Plaintiff filed her sur-reply on August 16,
2019, again requesting leave to amend her complaint should
the Court find it necessary (Dkt. #17 at p. 4).
Court's Scheduling Order sets December 3, 2019, as the
deadline for Plaintiff to file amended pleadings upon
obtaining leave of the Court (Dkt. #22 at p. 1).
15(a) of the Federal Rules of Civil Procedure allows a party
to amend its pleading once at any time before a responsive
pleading is served without seeking leave of court or the
consent of the adverse party. Fed.R.Civ.P. 15(a). After a
responsive pleading is served, “a party may amend only
with the opposing party's written consent or the
court's leave.” Id. Rule 15(a) instructs
the court to “freely give leave when justice so
requires.” Id. The rule “evinces a bias
in favor of granting leave to amend.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines,
Inc., 283 F.3d 282, 286 (5th Cir. 2002)).
leave to amend “is not automatic.” Matagorda
Ventures, Inc. v. Travelers Lloyds Ins. Co., 203
F.Supp.2d 704, 718 (S.D. Tex. 2000) (citing Dussouy v.
Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.
1981)). Whether to allow amendment “lies within the
sound discretion of the district court.” Little v.
Liquid Air Corp., 952 F.2d 841, 845-46 (5th Cir. 1992).
A district court reviewing a motion to amend pleadings under
Rule 15(a) may consider “whether there has been
‘undue delay, bad faith or dilatory motive, . . . undue
prejudice to the opposing party, and futility of
amendment.'” Jacobsen v. Osborne, 133 F.3d
315, 318 (5th Cir. 1998) (quoting In re Southmark
Corp., 88 F.3d 311, 314-15 (5th Cir. 1996)).
Court has discretion to deny a request to amend if amendment
would be futile. Stripling v. Jordan Prod. Co., 234
F.3d 863, 872-73 (5th Cir. 2000) (citation omitted). Futility
in the Rule 15(a) context means that the complaint, once
amended, would still fail to state a claim upon ...