Barrie v. Nueces Cnty. Dist. Attorney's Office
| Decision Date | 17 October 2018 |
| Docket Number | No. 18-40513,18-40513 |
| Parties | JENEBA H. BARRIE, Plaintiff - Appellant v. NUECES COUNTY DISTRICT ATTORNEY'S OFFICE, Defendant - Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
Summary Calendar
Appeal from the United States District Court for the Southern District of Texas
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
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Jeneba Barrie brought this employment-discrimination suit under state and federal law against the Nueces County District Attorney's Office. The district court dismissed her claim without prejudice because she sued a nonjural entity. It also denied her leave to amend because she failed to comply with local filing rules. She appeals both orders to this court. We AFFIRM.
We recite the facts as alleged in Barrie's complaint. Barrie, who is African-American, worked as an assistant district attorney at the Nueces County District Attorney's Office ("NCDAO") from March 2015 to April 2016. Despite strong job performance and praise from her superiors, Barrie was regularly passed over for promotions, while her less experienced white colleagues were not. After being passed over several times, Barrie expressed her concerns that she was being discriminated against to the NCDAO's victim coordinator. The victim coordinator took Barrie's concerns to another assistant district attorney, who in turn chastised Barrie for making complaints and told Barrie "that if she wanted to keep her job, she better stop complaining." Feeling that her employment at the NCDAO was not secure, Barrie tendered her resignation in April 2016.
Some time thereafter, Barrie filed a complaint with the EEOC against the NCDAO, alleging racial discrimination under Title VII. The EEOC issued Barrie a right-to-sue letter on March 16, 2017. Shortly thereafter, Barrie timely filed the instant action in the district court, alleging that the NCDAO violated Title VII and Texas's corollary anti-discrimination law by discriminating against her on the basis of race and retaliating against her for complaining about such discrimination.
In her original complaint, Barrie named the "Nueces County District Attorney's Office" as the defendant. She likewise requested that the clerk's office issue a summons to the "Nueces County District Attorney's Office, by and through County Judge Samuel L. Neal, Jr."
In response, the NCDAO filed a motion to dismiss for failure to state a claim on which relief can be granted. In its motion to dismiss, the NCDAO argued, inter alia, that Barrie did not name the proper party in her complaint.According to the NCDAO, Texas law does not permit lawsuits against district attorney's offices, because a governmental department is not a legal entity capable of suing or being sued. Put another way, Barrie should have sued the "Nueces County district attorney" instead of the "Nueces County District Attorney's Office."1
In her response to the NCDAO's motion to dismiss, Barrie attacked the NCDAO's position on the merits. Additionally, Barrie included in her response a perfunctory request for leave to amend, stating "to the extent necessary, the plaintiff affirmatively seeks leave from the court to file an amended complaint which deletes the apostrophe from the end of 'attorney,' the 's,' and the word 'office' from the defendant's name in the style of the case and in the body of the complaint." Barrie attached a proposed amended complaint to her response.
In its response, the NCDAO countered Barrie's arguments on the merits. In equally perfunctory fashion, the NCDAO opposed Barrie's request for leave to amend, arguing that "because Plaintiff has sued a non-jural entity and has not even attempted proper service, filing an amended complaint as suggested by Plaintiff will not cure this defect."
The district court denied Barrie's request for leave to amend and dismissed the complaint without prejudice. Regarding the motion to dismiss, the court agreed with the NCDAO that Barrie failed to allege that it had a separate legal existence and that it was therefore not amenable to suit. On leave to amend, the district court determined that the request failed to comply with the court's local rules for the filing of an amended complaint.2 Barrie appeals both orders.
This court reviews a district court's grant of a motion to dismiss under Rule 12(b)(6) de novo. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)). Although we accept all well-pleaded facts as true, the complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). We review the denial of a motion for leave to amend for abuse of discretion. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000).
Barrie contends that the district court erred in granting the NCDAO's motion to dismiss. To this end she argues that (1) she alleged sufficient facts to establish that the NCDAO has a separate legal existence and is therefore capable of being sued; (2) her naming of the NCDAO in her complaint amounted to a mere misnomer which is not grounds for dismissal; (3) the NCDAO's defense was not properly raised, as such defenses must be raised under Rule 9(a)(1) instead of 12(b)(6); and (4) the NCDAO's contention that it cannot be sued contradicts the position it has taken in other proceedings and is therefore barred under the doctrine of judicial estoppel. We address each of Barrie's arguments in turn.
First, Barrie argues that her complaint alleged sufficient facts to establish that the NCDAO has a separate legal existence and is thus capable of being sued. "In order for a plaintiff to sue a city department, it must 'enjoy a separate legal existence.'" Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991) (quoting Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill.1979)). Accordingly, "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. An entity's capacity to sue or be sued "shall be determined by the law of the state where the court is located." Fed. R. Civ. P. 17(b)(3). In this case, that law is the law of Texas.
Here, the named defendant is a district attorney's office—a governmental entity. Accordingly, the state of Texas or an authorized political subdivision must have granted it authority to be sued if this lawsuit is to proceed as presently constituted. See Darby, 939 F.2d at 313. Neither party cites a law that has authorized the NCDAO to be sued, nor are we aware of any such law. The district court therefore correctly concluded that Barrie did not allege sufficient facts to establish that the NCDAO is amenable to suit.
Next, Barrie contends that her naming of the NCDAO as a defendant was a simple misnomer, and is not grounds for dismissal. The facts of Darby foreclose Barrie's characterization. In Darby the plaintiff sued the Pasadena Police Department under Title VII. Id. Finding that the department did not enjoy a separate legal existence, this court agreed with the district court that the department could not be sued.3 Id. at 14. To characterize the naming of the NCDAO in a complaint as a simple misnomer would contradict this court's precedent. Barrie's contention is therefore without merit. And, if Barrie truly did intend to name the district attorney, rather than the district attorney'soffice, then the proper remedy would be to amend her complaint to name the proper party—not to allow the suit to move forward under the improper name.
Barrie further argues that the NCDAO's motion to dismiss was procedurally improper and that its defense was therefore waived. According to Barrie, any argument that the defendant cannot be sued must be raised under Federal Rule of Civil Procedure 9(a)(2), not 12(b)(6). Rule 9(a)(2) provides that "[t]o raise any of those issues [including lack of capacity to be sued], a party must do so by specific denial, which must state any supporting facts that are peculiarly within the party's knowledge." Rule 12(b)(6) provides the mechanism for presenting the defense that plaintiff has failed to state a claim upon which relief can be granted. As we have recognized in another context, "[a]lthough Rule 8 and—in specific circumstances—Rule 9 provide the statutory component of the federal pleading standard, Rule 12(b)(6) provides the one and only method for testing whether that standard has been met." Int'l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 203 (5th Cir. 2016). Barrie points us to no case where this court, or any other court, has refused a defense of lack of capacity because it was made under Rule 12(b)(6). We will not do so for the first time here.
Finally, Barrie argues that the NCDAO is judicially estopped from asserting that it cannot be sued. Barrie points to (1) the EEOC proceedings that led to this lawsuit and (2) another lawsuit against the NCDAO as instances in which the NCDAO implicitly asserted its capacity to be sued. "Judicial estoppel 'prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.'" Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). The party asserting judicial estoppel must satisfy two requirements: first, the party must show that the position taken by the party to be estopped is clearlyinconsistent with the position it took in the same or some earlier proceeding; second, the party to be estopped must have convinced the court to agree with its earlier position. Id.
Barrie first contends that the NCDAO made prior inconsistent statements in the EEOC proceeding that preceded this lawsuit. In her complaint to the...
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