United States District Court, N.D. Mississippi, Greenville Division
JANE M. VIRDEN, Magistrate Judge.
This matter is before the court on defendant's motion to dismiss plaintiff's state law claim(s) pursuant to Rule 12(b)(6). As explained below, the motion will be converted by the court to one for summary judgment, and for the reasons explained below, it will be granted.
A. Facts and Procedural Status
The plaintiff's complaint asserts a cause of action for violation of Title VII and a state common law claim for negligent infliction of emotional distress. In particular, the plaintiff, a school teacher, alleges that in November 2012 she was suspended for allegedly striking a child and that four days later on November 5, 2012, she was terminated for having done so. Plaintiff alleges that as a consequence of her termination, she filed a charge of discrimination with the EEOC the same month. Thereafter, she filed the instant lawsuit on June 26, 2014.
The defendant contends, by way of its motion, that the state law claim(s) should be dismissed because the plaintiff failed to plead her compliance with the pre-suit mandates of the Mississippi Tort Claims Act (MTCA), which governs all state law claims against governmental entities, including defendant. In particular, defendant argues plaintiff failed to assert, in the body of her complaint, that she had complied with MTCA § 11-46-11's requirement of written pre-suit notice of the state law claim, and that she in fact failed to actually provide the pre-suit notice. Defendant further asserts plaintiff failed to comply with the one year statute of limitations applicable to her state law claim under the MTCA. Alternatively, the defendant contends the complained of conduct is discretionary and, as such, the defendant is immune from liability under the MTCA as a matter of law. By way of affidavit in support of its motion to dismiss, the defendant explains further that though the plaintiff asserts in her complaint that her termination without pay was effective Nov. 5, 2012, her employment was not terminated until she was notified by letter dated March 22, 2013, that the school board had determined to uphold the superintendent's earlier decision to terminate her employment and that her employment was terminated effective March 29, 2013.
In response to the motion, Plaintiff argues that reference in her complaint to "having complied with all statutory and administrative prerequisites to filing suit" is sufficient reference to her compliance with the MTCA pre-suit notice requirement; that a letter of determination and proposed conciliation agreement each dated September 5, 2013 from the EEOC addressed to defendant and delivered via certified mail constitute substantial compliance with the mandatory pre-suit notice provision of the MTCA. She further contends that utilizing the September 5 date as the one on which notice pursuant to the MTCA was actually given, the one-year statute of limitations did not run until several days after her lawsuit was filed. Thus, plaintiff contends the suit is timely.
B. Conversion of the Motion to Dismiss to One for Summary Judgment
Federal Rule of Civil Procedure 12 provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
FED. R. CIV. P. 12(d) (emphasis added). The Fifth Circuit has explained:
[u]nder Rule 56, it is not necessary that the district court give ten days' notice after it decides to treat a Rule 12(b)(6) motion as one for summary judgment, but rather after the parties receive notice that the court could properly treat such a motion as one for summary judgment because it has accepted for consideration on the motion matters outside the pleadings, the parties must have at least ten days before judgment is rendered in which to submit additional evidence.
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.1990) (internal quotation marks omitted) (citing Clark v. Tarrant Cnty., Texas, 798 F.2d 736, 746 (5th Cir.1986)). "A party is on notice of the possibility that a court may convert a Rule 12(b)(6) motion into a motion for summary judgment ten days after a party submits evidence outside of the pleadings and that evidence is not excluded by the court." Bowers v. Nicholson, No. H-07-1910, 2007 WL 3047223, at * 4 (S.D. Tex. Oct.18, 2007) (internal citation omitted). This court has most recently accepted such a conversion from a Motion to Dismiss to a Motion for Summary Judgment in McNair v. Mississippi. See No. 4:13-CV-00127-DMB-JMV, 2014 WL 4181847, at *1 (N.D. Miss. Aug. 21, 2014).
Defendant submitted matters outside the pleadings in its motion to dismiss, see Dupree Aff. attached to Def.'s Mot. To Dismiss as "Ex. 1, " and plaintiff did as well in her response to the motion to dismiss, see Determination and Proposed Conciliation Agreement attached to Pl.'s Resp. to Def's Mot. to Dismiss as "Ex. 1." Therefore, defendant's motion to dismiss will be treated as one for summary judgment.
Summary judgment is warranted when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. Norwegian Bulk Transport A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986)). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing ...