Beverly J. Dean, Cross-Appellant v. Ford Motor Credit Company, Cross-Appellee

885 F.2d 300, 4 I.E.R. Cas. (BNA) 1623, 15 Fed. R. Serv. 3d 506, 1989 U.S. App. LEXIS 15551, 51 Empl. Prac. Dec. (CCH) 39,400, 51 Fair Empl. Prac. Cas. (BNA) 324, 1989 WL 109665
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 11, 1989
Docket88-1800
StatusPublished
Cited by148 cases

This text of 885 F.2d 300 (Beverly J. Dean, Cross-Appellant v. Ford Motor Credit Company, Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beverly J. Dean, Cross-Appellant v. Ford Motor Credit Company, Cross-Appellee, 885 F.2d 300, 4 I.E.R. Cas. (BNA) 1623, 15 Fed. R. Serv. 3d 506, 1989 U.S. App. LEXIS 15551, 51 Empl. Prac. Dec. (CCH) 39,400, 51 Fair Empl. Prac. Cas. (BNA) 324, 1989 WL 109665 (5th Cir. 1989).

Opinions

GEE, Circuit Judge:

The plaintiff brought suit in federal court against her former employer, alleging two claims under Title VII and a pendent claim under Texas law for intentional infliction of emotional, distress. The defendant filed a Rule 12(b)(6) motion to dismiss the plaintiff’s emotional distress complaint on the ground that it failed to state a claim upon which relief could be granted. The district court denied this motion, holding that the complaint did state a claim and giving the plaintiff leave to file a supplemental complaint that • clarified her emotional distress claim.

That claim was tried to a jury, and at the same time plaintiff’s Title VII claims were tried to the district court. At the close of the plaintiff’s case, the defendant moved for an order of dismissal pursuant to Fed.R.Civ.P. 41(b) or a directed verdict pursuant to Fed.R.Civ.P. 50(a). The district court denied this motion. The jury returned a verdict for the plaintiff on her emotional distress claim, awarding her a total of $275,000 for past, future and punitive damages. The defendant then filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied this motion. On the same date the district court issued a memorandum opinion on the plaintiff’s Title VII claims, holding that the plaintiff had failed to prove retaliatory discharge and entering judgment for the defendant on that issue.

On appeal the defendant contends that the district court erred in denying its Rule 12(b)(6) motion to dismiss the plaintiff’s emotional distress claim. The defendant also contends that the district court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict on the emotional distress claim. . The plaintiff cross-appeals, contending that the district court erred by failing to address her Title VII claim for failure to promote. We affirm.

Analysis

I. Defendant’s Rule 12(b)(6) Motion

The defendant contends that the plaintiff's complaint failed to state a claim for [302]*302intentional infliction of emotional distress and that the district court erred, therefore, in denying its motion to dismiss. The plaintiff argues that this contention was not properly preserved for appeal. We agree.

“A defense that the complaint fails to state a claim for which relief can be granted may not be asserted for the first time on appeal. If, however, the defense is actually raised in the trial court, it is not waived by failure to assert it in a specific manner. ...” Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479-80 (5th Cir.1984) (citations omitted). In this case the defendant contends that it properly preserved this issue for appeal by raising that issue in both its Rule 12(b)(6) motion and its joint pretrial order. Additionally, the defendant contends that it raised the issue again in its motion for dismissal and its motion for judgment notwithstanding the verdict. Neither contention has merit.

The defendant filed its Rule 12(b)(6) motion in response to the plaintiff’s original complaint. After that motion was denied the plaintiff, with the court’s permission, filed a supplemental complaint clarifying her emotional distress claim. The defendant failed to raise the issue of the sufficiency of the complaint with respect to the “supplemental” complaint, thus failing to preserve the issue for appeal. The defendant argues that it was not required to challenge the sufficiency of the supplemental complaint because it, unlike an amended complaint which replaces the original complaint, “merely represents additions to or continuations of the earlier pleading.” 6 C. Wright & A. Miller, Federal Practice & Procedure, § 1504 at 540 (1971). According to the defendant, the original complaint remained “live” and its Rule 12(b)(6) motion therefore applies to the supplemental as well as the original complaint.

The defendant’s argument misconstrues the basic difference between amended and supplemental claims as set forth by Wright & Miller at the exact section and page cited by the defendant. According to Wright & Miller,

[ajmended and supplemental pleadings differ in two respects. The former relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading; the latter deal with events subsequent to the pleading to be altered and merely represent additions to or continuations of the earlier pleading. Id. (Emphasis added.)

In other words, the important distinction between amended and supplemental pleading is when the events pleaded occurred. The defendant also ignores the remainder of the cited paragraph in which the authors state:

[pjarties and courts occasionally confuse supplemental pleadings with amended pleadings and mislabeling is common. However, these misnomers are not of any significance and do not prevent the court from considering a motion to amend or supplement under the proper portion of Rule 15. Indeed, the distinction between amendments and supplemental pleadings is sometimes ignored completely. Id. at 541. (Emphasis added.)

In this case the plaintiff’s second complaint clearly related to matters that occurred prior to the initial pleading. Therefore, despite its designation as a “supplemental complaint” it was in fact an amended complaint that replaced the original complaint. Therefore, the defendant’s Rule 12(b)(6) motion did not address the second complaint.

The defendant’s motion to dismiss— filed after the close of the plaintiff’s casein-chief — and its motion for judgment n.o.v. also fail to challenge the sufficiency of the plaintiff’s complaint. In its motion to dismiss, the defendant maintains that plaintiff “has failed to present any evidence” of emotional distress or outrageous conduct. This language challenges the sufficiency of the evidence, not the sufficiency of the plaintiff’s allegations in her complaint. Similarly, in its motion for judgment n.o.v. the defendant states that the plaintiff “failed to present any competent evidence ...” that plaintiff suffered emotional dis[303]*303tress or that defendant acted outrageously. Again, this language challenges the sufficiency of the evidence, not the sufficiency of the allegations in the complaint. We, therefore, conclude that the defendant failed to raise this defense in the trial court.

Perhaps anticipating our response to its arguments that it preserved the issue for appeal, the defendant raises the novel, albeit wholly meritless, argument that the district court had an independent duty itself to determine sua sponte whether the plaintiffs allegations satisfied the threshold requirements of extreme and outrageous conduct. The defendant cites numerous cases in support of its contention that this supposititious duty exists, independent of the adversary process and absent a valid challenge to the complaint by the defendant. In alleging that these cases support its argument the defendant comes dangerously close to playing fast and loose with both the law and this court.

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885 F.2d 300, 4 I.E.R. Cas. (BNA) 1623, 15 Fed. R. Serv. 3d 506, 1989 U.S. App. LEXIS 15551, 51 Empl. Prac. Dec. (CCH) 39,400, 51 Fair Empl. Prac. Cas. (BNA) 324, 1989 WL 109665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverly-j-dean-cross-appellant-v-ford-motor-credit-company-ca5-1989.