UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
KATHY CALDWELL CIVIL ACTION
VERSUS NO. 26-247
EINSTEIN CHARTER SCHOOL DIVISION “5” ORDER AND REASONS
Before the Court is the Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(4), 12(b)(5), 12(b)(2), and 12(b)P(6ro) s(er ec. doc. 14) filed by Defendant, The Einstein Group, Inc. (“Einstein” or “Defendant”). Plaintiff Kathy Caldwell filed an opposition to the motion (rec. doc. 16), and Defendant filed a reply. (Rec. doc. 22). Also before the Court is Plaintiff’s Motion for an Appointment of an Attorney. (Rec. doc. 13). There is no opposition to this motion and no other pleadings related to it. Having reviewed all of the pleadings and Ith. e appBliaccakblger loauwn, dthe Court rules as follows.
Einstein is a non-profit corporation organized under Louisiana law. (Rec. doc. 14-2). Caldwell filed this lawsuit against “Einstein Charter Schools” on February 27, 2026. (Rec. doc. 4 at 1). Caldwell alleges that she is over 40 years old aIdn.d began her employment as a teacher at Einstein Charter School on August 16, 2024. ( at 4). I dS.he remained in this position for less than one year, until her May 23, 2025 termination. ( at 5). During the course of her employment, Caldwell alleges that she “attemptedId .to file charges” regarding non-descript “job harassment” on an unspecified date in 2024. ( at 4). At an unspecified time thereafter, she wIads. “placed on medical leave by [her] physician from Oct[ober] 2024 to December 2024.” ( at 4-5). Caldwell maintains that this leaIdv.e was Id. Einstein terminated her employment on May 23, 2025, nearly six months later. ( ). Against this backdrop, Caldwell alleges that Einstein violated Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans
with Disabilities Act of 1990 (“ADA”) by terminating her Ide.mployment, failing to aIIc.c ommRoudleaste 1 h2e(rb a)l(l4e)g eadn ddi 1sa2b(ibli)t(y5, a)nd retaliating against her. ( at 3-4).
Defendant first moves to dismiss Plaintiff’s Complaint on the grounds of insufficient service of process under Rules 12(b)(4) and 12(b)(5). Defendant challenges both the form of the process and how process was served. Under Rules 12(b)(4) and (5), a complaint may be dismissed for either insufficient process or insufficient service of process. “An objection under Rule 12(b)(4) concerns the form of the process” rather than the manner or method of
its service and “is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable pHroavyiessi ovn. P inHcHo rMpoorrtagt.e Cdo bryp .Rule 4(b) that deals specifically with the content of the summons.” report and re, cNoom. 3m:e2n5d-CaVti-o0n1 a0d5o6p-Ete-dBT, 2026 WL 827616, at *1–2 (N.D. Tex. Feb. 11, 2026), Johnson v. Crosby Ele,m Neon. t3a:r2y5 S-CchV.-01056-E- BT, 2026 WL 824574 (N.D. Tex. Mar. 25, 2026); Shivers v. Ak,i mNoa. I3n:t2r3a-- DCVa-t2a010-B, 2024 WL 3641752, at *7 (N.D. Tex. Aug. 2, 2024) (quoting , No. 2:07 CV 55, 2008 WL 3992669, at *3 (S.D. Miss. Aug. 21, 2008)). “Thus, Rule 12(b)(4) is the proper challenge, for instance, when it is alleged that the Summons and
SChoimveprlsaint do not properly name the party on whom the Summons and Complaint is served.” , 2008 WL 3992669, at *3 (noting that a motion under Rule 12(b)(4) is “fairly rare” other than those cases in which it is confused with a motion under Rule 12(b)(5)). An objection under Rule 12(b)(5), on the other hand, challeSnegees the plaintiff's method oCfo sleemrvaince v .o Br athnke olafc Nk. Yo.f Mdeellliovnery of the summons and complaint. Fed. R. Civ. P. 12(b)(5); , 969 F. Supp. 2d 736, 745 (N.D. Tex. 2013) (citations omitted).
“A motion toQ duisinmni svs. Mpuilrlesruant to Rule 12(b)(5) turns on the legal sufficiency of the service of procePsrso. ”s e , 470 F. App'x 321, 323 (5th Cir. 2012). See Birl v. Esteliltleigants are not relieved of the requirements of Rules 12(b)(4) and 12(b)(5). , 660 F.2d 592, 593 (5th Cir. 1981). CCaoldlewmealnl bve. aBrasn tkh eo fb Nuerdwe Yno orfk p Mroevllionng that service was sufficient in both form and procLeescsh. n er v. Citimortgage, Inc. , 969 F. Supp. 2d 736, 744 (N.D. Tex. 2013) (citing , 4:09–CV–302, 2009 WL 2356142, at *1 (N.D. Tex. July 29, 2009)) (“The plaintsieffe b aelasors S tyhse. Sbiugrnds eSnu opfp plieros ovf. rUe.Sg.a Drdepin'tg o sf uJuffsitc.iency of the process [under Rule 12(b)(4)].”);
, 903 F.2d 1011, 1013 (5th Cir. 1990) (per curiam)(“When service of process is challenged [under 12(b)(5)], the serving party bears the burden of proving its validity or good cause for failure to effect timely service.”). Ultimately, “[t]he district court enjoys a broaGde doirsgcer evt. iUon.S .i Dn edpe'tte orfm Lainbi.n, Og cwcuhpeathtieorn taol dSaisfmetiys &s a Hne aacltthio And fmori nin.effective service of process.” 1 , 788 F.2d 1115, 1116 (5th Cir. 1986) (per curiam). “[A] Court rarely dismisses a case due to the failure to properly serve a defendant” and “[o]n occasions where the Court Choalse mgraann tve. dC adrirsimngistsoanl Mfoor ritmg.p Sreorpvesr., sLe.Lr.vCi.ce, it was only after multiple chances were given.” , No. 4:19-CV- ee also 5B Wright and Miller's Federal Practice and Procedure 1 S § 1354 (4th ed.) (collecting cases) (“Motions under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they offer the district court a course of action – quashing the process without dismissing the action – other than simply dismissing the case when the defendant's defense or objection is Bowling v. Childress-Herres, 00231, 2020 WL 4723174, at *5 (E.D. Tex. July 27, 2020); No. 4:18-CV-610, 2019 WL 4463450, at *6 (E.D. Tex. Aug. 7, 2019) (providing plaintiff multiple opportunities to serve defepnrdoa snet).
Although Plaintiff’s status does not excuse a failure to serve, the record reveals that she has, in fact, served Defendant, albeit with certain deficiencies in both the form and method of service. Most importantly, the Court finds that based Soene DSeyfse. nSdigannst ’Ssu fpilpinlige sof the motion to dismiss, Defendant has actual notice of this lawsuit. , 903 F.2d at 1013-14 (recognizing thatp dreof esendants' actual notice and plaintiff's repeated efforts to serve, when coupled with his status, “arguably provide grounds for leniency in considering the technical imperfections of service.”). What is more, there is no indication that Plaintiff needed “multiple chances to properly effect service” – this motion is the first
time the Court has had to address pthroe pseropriety of Plaintiff’s service on Defendant. Thus, in view of Plaintiff’s status, her efforts to serve, and Defendant’s actual notice of this case, this Court grants leniency rather than dismissal. Indeed, dismissal is generally not appropriate unless “there is nSoe er eCausrorninagbtloyn c vo.n XcTeOiv Eanbeler gmy,e Ianncs. of acquiring jurisdiction over the person of a defendant.” , No. 1:12-CV- 589, 2013 WL 12155258, at *1 (E.D. Tex. July 2, 2013) (citation omitted). Here, Defendant is a non-profit corporation organized under the laws of Louisiana and domiciled here in New 2 Orleans. For these reasons, the undersigned denies Defendant’s motion under Rules 12(b)(4) and 12(b)(5). 2 (Rec. doc. 14-2). Defendant argues that Plaintiff’s deficiencies in service of process renders this Court without personal jurisdiction over it. For the reasons just stated in the sentence foot-noted above, this is a specious argument, and the Court need not consider Defendant’s argument under Rule 12(b)(2), which challenges the III. Rule 12(b)(6)
The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Rule 8 “does not require ‘detailed factual allegations,’ but itA dshecmroafntd vs. Imqboarel than an unadorned, the-defendanBt-eulln Alatwl. Cfuolrlpy.- hv.a Trwmoemd-bmlye accusation.” , 556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555 (2007)). The statement of the claim must “‘giveT wthoem dbelyfendant fair notice of what Cthoen l.e .y . vc.l aGiimbs iosn and the grounds upon which it rests.’” , 550 U.S. at 555 (quoting , 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the elemeInqtbsa olf a cause of action,” or “‘naTkweodm abslsyertions’ devoid of ‘further factual enhancemeTnert.r’”y v. Orle,a 5n5s 6P aUr..S J.u astt . 6C7tr8. (quoting , 550 U.S. at 555,
557) (alteration omitted); report and recommenda, Ntioo.n C aVd 2o4pt-e2d535, 2026 WL 1689559, at *1–2 (E.D. La. May 19, 2026), , No. CV 24-2535, 2026 WL 1682206 (E.D. La. June 10, 2026). Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain suffIiqcibeanlt factual matter, accepted aTsw tormueb, ltyo ‘state a claim to relief that is plausible on its face.’” , 556 U.S. at 678 (quoting , 550 U.S. at 570). A claim is plausible on the face of the complaint “when the
plaintiff pleads factual content that allows the court tIod .d raw theT wreoamsobnlyable inference that the defendant is liable for the misconduct alleged.” (citing , 550 U.S. at 556). Plausibility does not equate to probability, but ratIhd.er “it asTkws ofmorb lmyore than a sheer possibility that a defendant has acted unlawfully.” (citing , 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability,I dit. ‘stops shoTrwt oomf bthlye line between possibility and plausibility of “entitlement to relief.”’ (quoting , 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit
the court to infer more than the mere possibility of misconducItd, .the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to relief.’” at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted). In considering a Rule 12(b)(6) motioTnw too mdbislmy isCsl offoerr fva.i Cluornen tiock state a claim, a court employs the two-pronged approach used in app.e al dismissed , Civ. A. No. 23-6268, 2024 WL 4855475, at *2 (E.D. La. Nov. 21, 2024), , No. 25-30139, 2025 WL 2020968 (5th Cir. Apr. 29, 2025). The court “can choose to begin by identifying pleadings that, because they are no more than conIcqlbuasilons [unsupported by factual allegations], are
not entitled to the assumption of truth.” , 556 U.S. at 679. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veIrda. city and then determine whether they plausibly give rise to an entitlement to relief.” “‘[The] task, then, is to determine whether the plaintiff has stated a leBgoadllyy bcyo gCnoiozka,b Ilnec c. lva. iSmta tthea Fta irsm p lMauusti.b Aleu,t on.o Itn tso. evaluate the plaintiff's likelihood of success.D’”o e ex rel. Magee v. Covington Cty. Sch. Dist. , 869 F.3d 381, 385 (5th Cir. 2017) (quoting , 675 F.3d 849, 854 (5th Cir. 2012)). A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any
documents attached to the complaint, and any documents attacLhoende t Sot athr eF munodt iVo n(U t.oS .d),i sLm.Pi. svs. tBhaartc alaryes c Beanntrka lP tLoC the claim and referenced by the complaint.”C ollins v. Morgan Stanley Dean Witter , 594 F.3d 383, 387 (5th Cir. 2010) (citing , 224 F.3d 496, 498-99 (5th Cir. 2000)). pro se Courts “liberallpyr oco snestrue briefs of litigants and apply leGsrsa nsttr vin. Cgueenltl asrtandards to parties proceeding than to parties represented by counsel.” , 59 F.3d 523, 524 (5th Cir. 1995). This does not mpreoa nse, however, that a court “will invent, out of whole
cloth, novel argumenJtosn oesn vb. eAhlfarlefd of a plaintiff in the absence of meaningful, albeit imperfect, briefing.” , 353 F. App'x 949, 952 (5th Cir. 2009). Even a liberally- construed Jporhon ssoen c ovm. Aptklaiinnst “must set forth facts giving rise to a claim on which relief may be grantedA.”. Title VII , 999 F.2d 99, 100 (5th Cir. 1993).
Title VraIIc ep, rcootleocr,t sr ealiggaioinns, t seuxn, loarw nfualt ioenmapl looyrimgiennt action taken “because of [the employee’s] .” 42 U.S.C. § 2000e-2 (emphasis added). The plain text of the statute excludes coverage for age and disability-based
discriminationS ebeecause those claims lie within thseee paulsrov iWewas hobfu rtnh ev . AHDaErvAe yand ADA, respectively. 29 U.S.C. § 623; 42 U.S.C. § 12112; , 504 F.3d 505, 508 (5th Cir. 2007) (“[Plaintiff’s] Title VFIieI lcdlsa ivm. T feaxil.s C beencta. Eudseu cT. iAtlgee VnIcIy does not proscribe discrimination on the basis of disability.”); , 754 F. Supp. 530, 533 (E.D. Tex. 1989) (“Plaintiffs evidently do not recognize that age discrimination is outside the scope of Title VII of the Civil Rights Act of 1964.”). In this case, Plaintiff selected only “age” and “disability oprr op esreceived disability” as the bases for her claims in Sections III (A) and (D) of the Court’s Complaint form. (Rec.
doc. i4.e a.t 4). Conversely, the protected characteristics that would trigger applicability of Title VIIdI., , race, color, gender/sex, religion, and national origin, are conspicuously left blank. ( ). Likewise, PIlda.intiff’s sparse facts section is devoid of any basis for a claim cognizable under Title VII. ( at 4-5). Accepting Plaintiff’s allegations as true, the Complaint fails to 3 state any claim for which relief may be granted under the plain language of Title VII. Because Plaintiff’s purported Title VII claimSse fea, iel .ags., aV amrantatdero ovf. Llaywnd, a Mngym attt. eGmroputp to cure such deficiency via amendment would be futile. , No. CV 25- 1718, 2026 WL 2066107, at *2 (E.D. La. July 17, 2026) (granting with-prejudice dismissal of Title VII claims for which amendment would not cure legal deficiency). Accordingly, PlaintifBf’s. TitleT VhIeI cAlaDiEmA shall be dismissed with prejudice.
SeTehe ADEA prohibits employers from discriminating against employees because of age. 29 U.S.C. § 623(a). Under the ADEA, “[i]t shall be unlawful for an employer to . . . discriminate against any inbdeicvaiudsueaol fwith respect to his compensation, terms, conditions, or privileges of employment, such individual's age.” 29 U.S.C. § 623(a)(1) (emphasis
added). “The ordinary meaning of the ADEA’s requirement that an employer took aGdrvoesrss ve. aFcBtLio Fni n‘b. eScearuvss.e, oInf’c a. ge is that age was the ‘reason’ that the employer decided to act.” , 557 U.S. 167, 176 (2009). Thus, “[t]o establish a disparate-treatment claim under this plain language,” PlaintiIfdf .msuees ta dlseom Moonssst vra. BteM tCh aSto fhtewra argee, I wnca.s the “but-for” cause of her May 23, 2025 teGrrmoisnsation. ; , 610 F.3dp r9im17a, 9fa2c2ie (5th Cir. 2010) (citing , 557 U.S. at 177). While Plaintiff need not plead a case of ADEA discrimination at the Rule 12(b)(6) stage, sNhoer “siws osrttihlly r evq. Huioruesdt o‘tno Ipnldeeapd. Ssuchff.i Dciiesnt.t facts on all of the ultimate elements’ of heCrh chliamim v..” U niv. of Tex. at Austin
, 70 F.4th 332, 336 (5th Cir. 2023) (quoting , 836 F.3d 467, 470 (5th Cir. 2016)) (affirming dismissal of ADEA claims). 3 Moreover, there is no evidence in the record that Plaintiff brought any claims based on discrimination due to Federal district courts in this circuit have dismissed ADEA claimWsa saht inthget o1n2 v(.b E)(a6s)t sBtaatgoen fRoor ufagiel uPraer itsoh dSecmhooonl sStyrsatteem “but for” or “because of” causation. In , the court dismissed the plaintiff's ADEA claim because he
alleged only that his employer “committed age discrimination” and that he was over the age Dofu 4k0es. vN. Aor. cC oivf .E Aa.s 1te0r-n5 0A3sc, e2n0s1io1n WL 4914968, at *5 (M.D. La. Oct. 14, 2011). In addition, in , the court dismissed an ADEA claim when the plaintiff failed to allege that her age was the but-for or “because of” reason of her termination. No. CV 18- 697, 2019 WL 3240053, at **2-3 (M.D. La. July 18, 2019). That court held that it was “insufficient for the plaintiff to plead her age and make a conclusory assertion that her termination was the result of ‘unlawful discrimination against her based on hIedr. age,’” particularly given the other potentially plausible reasons for her termination. at *3
(emphasis added). Consequently, that the plaintiff merely stated her age and summarily alleged age discrimination “d[id]I ndo. ts emeo avleso t hWea nseheindglet oonn [her] burden to show that she was terminated because of her age.” ; , 2011 WL 4914968, at *5 (granting motion to dismiss when the plaintiff made only conclusory allegations that adverse action was because of his age). The Court finds that Plaintiff’s Complaint fails to meet the ADEA’s “but-for” causation standard. Plaintiff merely alleges that she is over 40 years old and that she was terminated on May 23, 2025. (Rec. doc. 4 at 4-5). The Complaint contains no facts whatsoever –
conclusory, plausible, or otherwise – alleging that her termination was in any way motivated by age, let alone “because of” her age. (Rec. doc. 4 at 4-5). Likewise, Plaintiff’s ComplaSienet cgoennetarianllsy n iod .facts establishing age-based differences between herself and any colleague. Plaintiff’s limited allegations are even less compelling than those alleged in Dukes Gross and fail to approach the Supreme Court’s threshold inquiry articulated in . Thus, Plaintiff’s allegations in her Complaint, accepted and construed as true on their face, lack sufficient factual support to state a facially plausible claim of age-based discrimination.
AccordiCn. gly, thTeh Ceo AuDrtA w ill dismiss Caldwell’s ADEA discrimination claim without prejudice. 1. Reasonable Accommodation
Under the ADA, an employer is prohibited from failing to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). Thus, to state an ADA discrimination claim for
failure-to-accommodate, as alleged here, Plaintiff must show that: (1) she is a qualified individual with a disability; (2) her disability and its limitations were known by EinsteSitnr;i faen vd. (A3ld) iEnien sIntedi.n S fcahi.l eDdi stto. make reasonable accommodations for such Aknmoewdene l ivm. Sithaetillo nCsh.e m., L.P. , 138 F.4th 23F7e, i2st4 v5. L(5at.,h D Ceipr'.t 2o0f 2Ju5s)t .(, cOiftfi.n ogf the Atty. Gen. , 953 F.3d 831, 837 (5th Cir. 2020); , 730 F.3d 450, 452 (5th Cir. 2013)). Crucially, Caldwell makes no attempt to plead that she is disabled, the establishTmyelenrt vo. fL wa-hZi-cBho iys Cao “rtph.reshold requirement” necessary to trigger applWicaalbdirliitpy v o. fG tehne. Estlaetcu. Cteo.. , 506 F. App’x 265, 267 (5th Cir. 2013) (citing
, 325 F.3d 652, 654 (5th Cir. 2003)). Indeed, Plaintiff pleads only that she “was placed on medical leave by [her] physician” due to unspecified affects to her “mental and physical health.” (Rec. doc. 4 at 4-45). Having alleged no disability, it follows that Plaintiff fails to allege that Einstein refused to make reasonable accommodation or otherwise took adverse actions against her on account of a disability. Accordingly, the Court will dismiss without prejudice Plaintiff’s
disability discr2im. inatRioent acllaiaimtio fonr U fanidluerre B too tphle tahde s AuDffiEcAie annt fda cthtuea Al sDuApport for such a claim.
Plaintiff’s retaliation claim suffers a similar fate. To state a retaliation claim under either the ADEA and ADA, Plaintiff must show “that (1) she participated in a protected activity, (2) she suffered an adverse employment action by her employer, aSnede ,( 3e.)g t.,h Gerreee ins va. cOacuhssanle cro LnSnUe Hcteiaolnt hb Sehtwreeveenp othrte protected activity and the adverse action.” Tratree v. BP N. A,m N.o P. iCpVel 2in2e-s1, 4In2c2., 2024 WL 1057217, at *11 (W.D. La. Mar. 11, 2024) (citing , 277 F. App’x 390, 395 (5th Cir. 2008) (“This
Court uses the same stanLydoanrds sv .o Kf aptryo oInf dfoerp .i nSdchir. eDcits dt.iscrimination claims under the ADEA as it does for Title VII.”)); , 964 F.3d 298, 304, n.3 (5th Cir. 2020) (noting that ADA retaliation claims “employ the same burden-shifting scheme applicable to claims under Title VII.”). The Court finds that Plaintiff fails to plead the first and most elementary element of a retaliation claim – that she engaged in protected activity. Because the Title VII retaliation analysis controls ADEA and ADA retaliation claims, “protected activity” is defined as “opposition to any practice rendered unlawful by [the ADEA or ADA], including makingI da.
charge, testifying, assisting, or participating in any investigation, proceeding, or hearing.” A plaintiff’s opRpoodsriitgiuoen vt.o P TaSn Memgmptlo. yGerrp’.s, Lc.oLn.Cd.uct, standing alone, does not satisfy this requirement. , 550 F. Supp. 3d 376, 400 (W.D. La. 2021) (“Evidence that the plaintiff opposed the defendant's conduct, standing alone, does not of a practice made suantliaswfyf utlh bey o Tpiptloes VitIiIon clause. RaEt.hEe.Or.,C t. hve. Rciltaeu sWe a‘yre Sqeurivr.e, sIn ocp. position .’”) (quoting , 819 F.3d 235, 240 (5th Cir. 2016) (emphasis in original)). “Rather, the clause ‘requiresId o. pposition Eo.fE .aO p.Cr. avc.t iRciete m Wadaey
Suenrlva.w, Ifnucl. by Title VII,” and, by proxy, the ADEsAe ea anldso A LDyAo.n s (quoting , 819 F.3d 235, 240 (5th Cir. 2016)); , 964 F.3d at 303. Therefore, to trigger protected activity, tIhde. plaintifTfr “amtrueest give the employer some notice of how the conduct is discriminatory.” (citing , 277 F. App’x at 395). Caldwell, however, fails to establish that she opposed an employment practice made unlawful by the ADEA or ADA. She alleges only that she “attempted to file charges on job harassment in 2024.” (Rec. doc. 4 at 4). Caldwell fails to articulate the basis for these nondescript “charges” and likewIdi.se fails to articulate whether Einstein was aware of any
protected basis for the same. ( ). Thus, The Court finds that Plaintiff’s allusion to vague, non-specific “charges” does not satisfy the protected activity pleading requirement, wIVa. rranMtinogti doins mfoirss Aapl wpoitihnotumt epnrte joufd Cicoeu onfs heel r retaliation claims.
Because the undersigned will allow Plaintiff leave to amend her Complaint in part in 4 line with Fifth Circuit precedent, the Court must now address her Motion for Appointment of an Attorney. (Rec. doc. 13). The Court’s power to “appoint counsel” is derived from 28 4 See Cates v. International Telephone and T e“l[eAg]r applahi nCtoifrfp's. failure to meet the specific pleading requirements should not automatically or inflexibility result in dismissal of the complaint with prejudice to re-filing. , 756 F.2d 1161, 1180 (5th Cir. 1985) (“But such deficiencies do not normally justify dismissal of the suit on the merits and without leave to amend, at least not in the absence of special circumstances.”). Although a court may dSiseme iOs'sB trhieen c vla. iNma,t iito nshaol Purldo pneortt yd oA nsaol ywsittsh Poaurtt ngrearsnting leave to amend, unless the defect Hisa srtim v.p Blya yienrc Cuorrapb.le or the plaintiff has failed to plead with particularity after being afforded repeated opportunities to do so. , 936 F.2d 674, 675-76 (2d Cir. 1991).” U.S.C. § 1915(e)(1), which provides that the “court may request an attorney to represent any person unable to afford counsel.” PlaSinetei fCf ahsatso nn evi.t Sheearr as ,c Roonesbtiutuckti o&n Caol .n, or an automatic right to appointed counsel in a civil case. 556 F.2d 1305, 1309
(5th Cir. 1977). Unlike a criminal defendant, an indigent civil rights litigant, even if currently iSneceaNrcoerrtaotne dv,. dEo.Ue.s D niomt ahzaavnea a right to appointed counsel absent “e;x Acekpatsiiokne avl. cFiritczupmatsrtiacnkc, es.” , 1V2it2u Fg .v3.d M 2e8r6it, S2y9s.3 P (r5otthe c tCioirn. B19d9. 7) 26 F.3d 510, 512 (5th Cir. 1994); , Civ. A. No. 01-3297, 2002 WL 1216023 (E. D. La. June 4, 2002). Indeed, the federal court has consiSdeeeraSballem doins cvr.e Ctioornp uins dChetreisrtmi Iinndinegp . wSchheotohle Dr itsot. make such an appointment in a civil case. , 911 F.2d 1165, 1166 (5th Cir. 1990). The Court has discretion to aSepep Uoilnmte cro vu. nCsheal nince slulocrh, a case if doing so would advance the p rSoaplmero andministration of justice.
691 F.2d 209, 212-13 (5th Cir. 1982); , 911 F.2d at 1166. TSheee pCalasitnotnif, f bears the burden of persuasion as to the necessity of such an appointment. 556 F.2d at 1310. The evidence that must be addIdu.ced includes (1) plaintiff’s indigence and (2) efforts made byth Prleasihnotlidff to secure counsel. These are bare minimum considerations. however. Additionally, the Court
should consider the following factors:
(a) the type and complexity of the case; (b) whether the indigent is capable of presenting his case adequately; (c) whether he is in a position to investigate his case adequately; and (d) whether the evidence will consist in large part of conflicting testimony so as Parker v. Carpteon treerquire skill in the presentation of evideUnlcmee arnd in cross-examination. , 978 F.2d 190, 193 (5th Cir. 1992); , 691 F.2d at 213. The Court also considers whether appointment of counseIld w. ould be of service to the court and the defendant by sharpening the issues in the case. The Court finds that Plaintiff’s indigence weighs in favor of the appointment of counsel. And while Plaintiff alleges that she contacted 27 attorneys to represent her – which wproou sled weigh in her favor – there is no evidence in the record that she did so. Generally, a
plaintiff attaches some sort of letter and/or email to her motion in which an attorney declines to represent that party because of her indigence. She maintains that she could not retain an attorney because all 27 attorneys declined to represent her because she cannot afford to pay, but cases like this reward feeSse aend costs to prevailing partieKse snon aeds yto v e. nPcaorukvraiegwe cBoaupntissetl S tcoh .r, eInpcr.esent indigent plaintiffs. 42 U.S.C. § 12205 (ADA); , No. 13-478-SCR, 2015 WL 6680872, at *w2h (iMch. Da.p Lpal.i eNso tvo. 2a,g 2e0 d1i5s)c r(i“mTihnea Ftiaoinr Lclaabimors Sutnadnedra trhdes A ADcEtA's (“FSLA”) attorney's fee statute, , mandates only that a district court award attorney's fees to a plaintiff
who is a prevailing party. 29 U.S.C. §§ 216(b) and 626(b).”) (emphasis added). In this lawsuit, the Court finds that Plaintiff has been able to present her claims adequately as well. She drafted her Complaint and her pauper application. She also drafted the motion to appoint counsel and her opposition to Defendants’ motion to dismiss. This is a run-of-the-mill disability lawsuit, and since this Court will grant Plaintiff leave to amend in an attempt to fix her Complaint – the roadmap of which the Court has provided above – Plaintiff should now have a better idea of what information she needs to plead to survive any future motion to dismiss. Plaintiff is not a prisoner confined to a prison cell, so she will be
able to investigate her claims to uncover evidence to support them. In short, because the issues here are based on discrete incidents, the Court does not find that counsel is necessary t o sharpen the claims and issues for either the Court or Defendants. V. Conclusion
AITc cIoSr dOinRgDlyE, RanEdD for the foregoing reasons, DENIED IN PART G RANTED IN PART that Defendant’s Motion to Dismiss is and
IT IS ORDERaEsD f ollows. DENIED that the motion is under Rules 12(b)(2), 12(b)(4), and 12(b)(5I)T. IS FURTHER ORDERED GRANTED tDhaItS MthIeS SmEDot iWonIT iHs PREJUDICEunder Rule 12(b)(6). Plaintiff’s claims under Title VII are DI SfMorI SfSaEiluDr eW toIT sHtaOteU Ta PclRaiEmJU. D IPClEaintiff’s claims under the ADEA and the ADA are , and the Court grants Plaintiff leave to amend her Complaint in accordance with this CouITrt I'sS OFrUdReTr HanEdR R OeRasDoEnRs EwDithin 21 days from the date on which it issues.
DENIED that Plaintiff’s Motion for an Appointment of an Attorney. 9th September (Rec. doc. 13) is . New Orleans, Louisiana, this __________ day of __________________________, 2026.
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE